The sole purpose of the Lanham Act of 1946 is to protect intellectual property rights (Cornell University Law School, 2010). The law provides for terms and conditions for qualification to register a business trademark according to the law, trademark owners must have federal registration as a way of preventing infringement of their marks (Port, Nard, & Halpern, 2007). Such principal register requirements are aimed at mitigating registering of existing, immoral, or other categories of trademarks prohibited by the law.
The law also provides for supplemental register, which allows for marks such as merely descriptive ones not recognized under the principle registers. Further, under subchapter III, the Lanham Act outlines the remedies for addressing trademark and advertisement infringements (Port, Nard, & Halpern, 2007). This essay is a discussion the provisions and purpose of the Lanham Act and standards set for compliance and enforcements. In addition, the author provides a discussion on any differences on how the law is applied from state to state as well as a personal assessment on fairness and reasonability.
The Lanham Act is designed for addressing three main intellectual property right issues. These are protection of trademark infringement, trademark dilution, and falsified use of words and designs employed in the advertisement of particular goods and services (Port, Nard, & Halpern, 2007). The law provides classification of trademarks depending on where it is used. As an example, according to the Act, some trademarks can be used by different parties but in different classes.
In addition, the Lanham Act gives requirements for the registering of trademarks with the federal government as well as the associated penalties upon trademark infringement. Another purpose of the Lanham Act is to define the operational scope of a particular type of trademark (Port, Nard, & Halpern, 2007). The Lanham Act defines a number of compliance standards for registering and use patent and trademarks by the owners. According to the provisions of Subchapter I, the Act provides for requirements such as how to apply for trademark registration and the verification needed (Port, Nard, & Halpern, 2007).
By verification, the law dictates for authentication of ownership of mark as a personal intellectual property. This section also provides for regristrable types of marks on the principle register, disclaimer on unregistrable marks. As an emphasis, the Lanham Act prohibits some forms of trademarks and service and advertising marks based on immorality and merely descriptive categories. Still, the provisions of subchapter I provide an outline of the duration over which the trademark certificate is valid for use as well as renewal options (Port, Nard, & Halpern, 2007).
Such could also entail assignments such as compulsory provision of an affidavit to the principal indicating continued use of the marks after every five years as well as addressing registration case challenges and registration cancellations. Subchapter II on the other side provides for supplemental register. The purpose of these register is to protect unregistrable marks under the principle register such as merely descriptive ones as they may become registrable in future (Port, Nard, & Halpern, 2007). Nevertheless, such provisions are only for warning infringers that the mark is in use although the register grants some benefits to such marks.
The provisions of Subchapter III form the purpose of the Lanham Act as they define the remedies applicable to trademark infringement cases. In summary, the provisions include seeking injunctions and damages for imported goods claimed to infringe or counterfeit authentic trademarks or serve marks (Port, Nard, & Halpern, 2007). Section 43 of subchapter III of the Act serves to resolve issue of confusion on infringement of unregistered trademarks. The section also defines the principles for determining the legality of claims on misleading statements alleged to hurt businesses.
Such are proof that a false statement was made, it was employed in a commercial promotion, and that it has the potential of harming the accuser. The law might also require proof that through the force statements, the defendant gained access of their goods and/or services in interstate commerce. According to available information, subchapter III of the Act has been amended to provide for the creation of the National Intellectual Property Law Enforcement Coordination Council as well as inclusion of legal prohibitions against cyber-piracy (Port, Nard, & Halpern, 2007).
Under the provisions of the Madrid protocol, subchapter IV of the Lanham Act was imposed to regulations on resolving international trademark infringements based on United States applications. This subchapter also functions to outline the requirements for certification, restriction, cancellation, and expiry duration of international applications. Still provided for is the right of priority by international applications to request protection extension to America (Lalonde, & Gilson, 2002). However, it is worth noting that the application of the law is different from state to state.
This is because there are other legal provisions for protecting trademarks such as the common law. Different states have statutes for controlling some aspects of trademark protection. The enactment of the Lanham Act was triggered by ineffectiveness of the previous Trademark Act to provide enough protection against distinctiveness of trademarks. The previous law allowed for registering of the merely descriptive or generic trademarks (Lalonde, & Gilson, 2002). Such a provision was blamed for high incidences of reproduction and counterfeiting of products.
The traditional Trademark Act was also limited since it did protect falsified advertising practices as harmful to businesses. Another claim by advocates of the Lanham Act was the need by the government to ensure that trademarks are practiced as a way of ensuring sustainable economic development (Port, Nard, & Halpern, 2007). The act was also seen as a useful tool for fighting against registration of trademarks as well as outlining stiffer remedies for marks infringements. In my opinion, the provisions of the Lanham Act are fair and reasonable since their serve the great purpose of protecting intellectual property rights.
Just to be appreciated is the fact that intellectual property rights only serves to compromise the sustainable competitive advantage of investments in the marketplace. Therefore, since the Lanham Act prohibits registration of a particular trademark more than once, then it serves to mitigate conflict interest in business by dictating for registration of distinctive marks. Another reason why the Lanham Act provisions are fair is that they provide for addressing international trademark application in the United States while still giving priority right for international applications seeking for protection in the United States.
In conclusion, the Lanham Act is quite instrumental in enhancing intellectual property rights protection in the United States. It gives clear provisions for the registration of trademarks by businesses. Such include distinctiveness of the mark and prohibiting registration based on moral aspects of the marks as well as with other outline categories prohibited under the Act. in addition to this, the law provides for various remedies on trademark infringements as well as falsified advertising practices however, the law is not uniformly enforced in all states of America.
Some states have different state statutes which define some aspects of trademark protection. The common law also provides substantial trademark protection and thus complements the Lanham Act in some states. References Cornell University Law School. (2010). Lanham Act. Retrieved June 2, 2010, from http://topics. law. cornell. edu/wex/Lanham_Act Lalonde, A. , & Gilson, J. (2002). The Lanham Act: Time for a Face-Lift? New York: LexisNexis. Port, K. , Nard, C. , & Halpern, S. (2007). Fundamentals of United States Intellectual Property Law: Copyright, Patent, Trademark. New York: Kluwer law International.