Just like citizens’ physical possessions, intellectual property and the results of artistic and brand development endeavors must be protected. In the U.S., the Lanham Trademark Act of 1946 enables trademark owners to prevent the unauthorized use of their brands’ hallmarks. Clear and unambiguous rules regarding the terms and conditions of trademark registration would prevent the abuse of power and inappropriate commercial competition strategies, such as imitating other brands for profit or defamation. This essay explores the Lanham Act’s influences on shaping trademark registration practices.
The Lanham Act has been created to minimize the risks of controversial trademark-related situations by limiting opportunities for registration with reference to certain categories of claims. Firstly, trademark registration is prohibited if there are substantial similarities between a new application and already granted trademarks, including company and domain names (Lau & Johnson, 2011). Secondly, the act seeks to prevent the registration of trademarks that do not have well-established secondary meanings and would, therefore, be perceived as names or general descriptions. Specifically, the use of trademarks that are “primary merely a surname” is not allowed unless there is solid evidence that this name and a certain business are synonymous in the mind of the public (Assaf-Zakharov & Herzog, 2019, p. 1089). These restrictions give the pride of place to the uniqueness and public recognition to prevent disputes.
Apart from making trademarks’ distinctiveness a priority, the Lanham Act restricts the use of any symbols of national significance, thus promoting ethical conduct in business settings. For instance, trademarks containing the pictures of the U.S. flag or buildings associated with the authorities are strictly prohibited (Lau & Johnson, 2011). At the same time, the elements of flags that have been made up by applicants are acceptable as long as there is no strong resemblance between them and any emblems protected under international agreements (Assaf-Zakharov & Herzog, 2019). Without this rule, there would be trademarks that could suggest inaccurate ideas concerning businesses’ relation to and partnerships with some official bodies, resulting in misinformation.
The Lanham Act aims to guard the nation’s perspectives on morality by preventing the registration of trademarks that contain anything perceived as immoral or offensive, but the rule’s constitutionality remains an issue. Under the law’s disparagement clause, any trademarks that may falsely suggest connections with beliefs, institutions, and specific population groups, bringing them into disrepute, are illegal (Cochran, 2019). At the same time, from court practice in the U.S., trademarks that convey positive messages about individuals and groups can be registered, making the message’s communicative goal central to decision-making (Cochran, 2019).
The act’s disparagement provision intended to impact all offensive/derogatory trademarks to the same extent. However, in fact, it emphasized the conveyed message as the basis for registration decisions. In the case of the FUCT trademark, according to the Supreme Court, it was decided that the disparagement rule was contrary to the First Amendment to the Constitution of the United States (Cochran, 2019). Thus, the inability to fully implement the Lanham Act while also supporting U.S. citizens’ constitutionally protected freedom of speech has been recognized as an opportunity for improving the guiding principles of trademark legislation.
To sum up, the discussed act has established clear trademark registration practices and prohibitions that guide the decisions of the U.S. trademark and patent authorities. The promotion of content’s uniqueness and a special place in the nation’s mind emphasize the role of distinctiveness in business matters. However, the law’s constitutionality is called into question due to the ongoing conflict between moral considerations and free speech.
References
Assaf-Zakharov, K., & Herzog, L. (2019). Work, identity, and the regulation of markets: A study of trademark law in the United States and Germany. Law & Social Inquiry, 44(4), 1083-1112. Web.
Cochran, C. (2019). It’s FUCT: The demise of the Lanham Act. IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property, 59(2), 333-365. Web.
Lau, T., & Johnson, L. (2011). Trademarks. In The legal and ethical environment of business. Flatworld. Web.