Is the Lanham Act used to protect commercial trademarks? or for protecting the public from fraud?

Question

My research has led to unexpected discoveries and areas of learning relevant to the artisan.

Academic paper by Lemly refers to an academic paper by Brown only two years after the Lanham Act was enacted: The Modern Lanham Act and the Death of Common Sense by Mark A. Lemley published in 1999.

[W]hat appear to be private disputes among hucksters almost invariably touch the public welfare. We shall therefore be concerned to ask, when courts protect trade symbols, whether their decisions further public as well as private goals.(1) When Ralph Brown wrote his seminal article on trademark law fifty years ago, the modern era of trademark law had just begun. The Lanham Act, the foundation of trademark law today, was only two years old,(2) and the nature of modern commerce was only just beginning to take shape.

Both authors point out that the Lanham act as written is directed against misrepresentation and identity theft, becasue this harms the public.

Both authors seem to deplore the admittedly inevitable evolution in an increasingly commercialized society where trademarks war against each other.

Both authors wonder:

Why should the government be involved with protecting the rights of commercial trademarks? I came across this article by accident while doing research. I would like to know about the Lanham Act in practice.

My Question:

As the Lanham Act is applied today in civil cases, are there more cases where the issue is trademark violation? or are the more cases where the disputed issue has to do with misrepresentation and consumer fraud?

Answer 1

As the Lanham Act is applied today in civil cases, are there more cases where the issue is trademark violation? or are the more cases where the disputed issue has to do with misrepresentation and consumer fraud?

The Lanham Act is applied today in civil cases almost exclusively by commercial trademark owners to enforce claims of trademark infringement for trademarks approved to be listed in the primary trademark register by the U.S. Patent and Trademark Office, and in disputes over trademark validity and ownership.

There are some isolated and narrow provisions of the Lanham Act involving misrepresentation and consumer fraud but these provisions make up a tiny percentage of all Lanham Act litigation. But many lawyers don't even know that these provisions exist. This lack of knowledge is mostly harmless, because other federal laws, and state statutes, usually provide better remedies (e.g. statutory damages) in consumer fraud cases.

Why should the government be involved with protecting the rights of commercial trademarks?

This is just weird. Almost no one in modern private law jurisprudence would share that view today. It would be almost like wondering why the government should enforce contracts or property rights or should allow people to sue when injured in car accidents.

Most modern legal scholars see trademarks as a form of intellectual property, and government protection of it as in accord with the general role of government to protect property rights in order to foster a healthy economy.

This isn't controversial in partisan sense either. Both pro-business Republican factions, and neoliberal Democratic party factions have strongly supported enforcement of commercial trademarks. The push to make other countries do so has been an unwavering part of U.S. foreign policy under both Republican and Democratic President administrations for decades. There are populist Republicans and progressive Democrats who are more leery of commercial trademark enforcement, but these views do not hold majority support in either major U.S. political party.