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Learning Objectives

After completing this section, you will be able to

  • Grasp the basics of trademark law.
  • Analyze notable trademark cases.

As the young United States rapidly developed its commerce and industry in the late eighteenth and early nineteenth centuries, propelled in no small part by the nation’s unusually democratic and effective patent laws (see Chapter 1, “Section 1.5: What the U.S. Patent System Wrought”), the states developed increasingly sophisticated and complex trademark laws. Eventually, however, the transformation of America’s many local and regional markets into a single, unified, national economy propelled Congress to try to federalize trademark law despite the lack of any express constitutional authority to do so. So Congress passed the first national trademark laws in 1870 and 1876. But in a set of three court challenges consolidated into a single appeal before the U.S. Supreme Court in 1879, Justice Samuel Freeman Miller ruled for the majority that the Patent and Copyright Clause of the Constitution gave Congress no explicit authority to regulate trademarks, and declared the 1870 and 1876 trademark laws

The Commerce Clause and the Lanham Act of 1946

Two years later, Congress instead acted under the Commerce Clause of the Constitution to pass the Trade Mark Act of 1881. This first national trademark law, however, only regulated trademarks used in commerce with other nations and with Indian tribes. It wasn’t until 1905 that Congress passed another trademark statute regulating the use of marks within the United States.

Those two trademark laws were subsequently overhauled by the Lanham Act of 1946 , which remains the principal law of the land on trademarks in the United States to this day.vii It broadened national registration of trademarks, and also gave owners of unregistered marks access for the first time to the federal courts. The act also established remedies such as bars on the sale or importation of infringing products, and required the renewal of trademarks every ten years to weed out the registry trademarks that are no longer in commercial use (known as the “deadwood” prevision).viii

After 119 years in business, for example, the world-famous retailer Woolworth’s went bankrupt in 1997 and its trademark was no longer protected. The 83-year-old Hostess Twinkies brand, however, was acquired by two private equity firms for $410 million because they see future profit in the iconic brand—and the customers who love it.

Requirements for a U.S. Trademark

The requirement that a trademark must be actively used or intended to be used in commercial activity in order to be protected by law has been a fundamental feature of U.S. trademark law since its inception. The Lanham Act specifically requires applicants to submit “a verified statement that the mark is in use in commerce, specifying the date of the applicant’s first use of the mark in commerce and those goods or services specified in the notice of allowance on or in connection with which the mark is used in commerce.”ix A trademark is presumed to have been abandoned when its owner ceases to use it for three or more years, after which anyone else can register and use the mark.


  • vi See United States v. Steffens 100 U.S. 82 (1879); United States v. Wittemann 100 U.S. 82 (1879); United States v. Johnson 100 U.S. 82 (1879) Retrieved From
  • vii Harvard University. (2012). Overview of Trademark Law. Retrieved from
  • viii Op. cit., Miller and Davis.
  • ix 15 U.S.C. §1051 Retrieved from
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