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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?

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  • What is your actual question here? The body doesn't seem to ask anything, nor should question depend entirely on an external link. Dec 19, 2021 at 3:03
  • In a broad sense, the Act has several purposes, including to protect the commercial; value of trademarks, and to deter infringers who may also be defrauding or deceiving the public. So off-hand, both. Dec 19, 2021 at 3:06
  • My question is: 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 consumer fraud? Dec 19, 2021 at 3:10
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    Then please edit that into the question. Note please that questions about why a particular law is as it is, and whether it serves its ostensible purpose well, or whether some other law might serve it better are all off-topic here in most cases, except for the few cases where the reasons behind a law are part of legal history, such as with perjury law. Dec 19, 2021 at 3:17
  • Hm. Thank you. The cited article (1999) was in reference to another legal article written two years after the Lanham Act was enacted. The question addressed in both articles is if the Lanham Act is for the purpose of protecting the public from misrepresentation and identity fraud, etc.? or is it a war between trademarks? They write that Lanham as written is not intended to adjudicate trademark versus trademark commercial disputes. I am sorry. I am not a legal person. I'm doing research for our cooperative. My intentions are perfectly good; i hope to learn to contribute to this community. Dec 19, 2021 at 22:44

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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.

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  • Academic paper by Mark A. Lemley published in 1999 is about the legal theory of Brown, 50 years previously, (only two years after the Lanham Act was enacted): The Modern Lanham Act and the Death of Common Sense. Both authors deplore that the government should keep track of these copyrights as a service to trademarks wanting to fight other trademarks.. Dec 21, 2021 at 16:34
  • The positive point made by both these legal scholars is that the letter-of-the-law Lanham Act as written was intended to protect the public from identity fraud and misreperesentation. Dec 21, 2021 at 16:36
  • "Lanham Act involving misrepresentation and consumer fraud but these provisions make up a tiny percentage of all Lanham Act litigation" No doubt. Still, when one reads the language of the Lanham Act, it's provisions seem to have the public good centrally in mind. Dec 21, 2021 at 16:55
  • @MariaAlaniz All laws have the public good in mind. All laws which may be enforced by a civil action also (at least in the federal courts that have exclusive jurisdiction over Lanham Act jurisdiction, where constitutional standing rules apply) also always involve a concrete particularized injury to the plaintiff that is being vindicated in the lawsuit. It protects the public from identity fraud and misrepresentation by allowing people harmed by this to sue (almost always business to business not by consumers themselves, even in none trademark cases).
    – ohwilleke
    Dec 21, 2021 at 19:43
  • "All laws have the public good in mind." No doubt in theory they do. I am making a distinction between the Lanham Act used to defend the legal right of a person or a constituted group to not have their identity abused to their material detriment versus the Lanham Act when used to have a judge settle disputes between purely commercial trademark claims. Dec 21, 2021 at 21:36

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