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Trademark Law Research Guide

Getting Started Researching Trademark Law

Introduction

Introduction to Trademark Law

A trademark is a “word, phrase, logo, or other sensory symbol used by a manufacturer or seller to distinguish its products or services from those of others” (Black’s Law Dictionary). It is a type of commercial identification.  In the United States trademarks may be registered with the U.S. Patent and Trademark Office. Registered trademarks are indicated with the symbol ®. Trademarks that are not registered use the symbol ™. One can file for a trademark at the state or federal level.  Filing at the state level is less expensive and a quicker process. However, if someone already has the same mark registered at the federal level, it precludes someone from registering it at the state level.  Filing at the Federal level is more expensive and can be a much longer process.  A trademark is a type of intellectual property, but unlike patents and copyrights it is not a property granted by the U.S. Constitution. Trademark law in the United States did evolve until the late 19th century.  Before trademark issues were handled through the common law in the United States.

The use of marks to indicate the maker of tools and other objects dates back to prehistoric times.   Biblical references indicate the commercial use of such marks to indicate the provider of objects or services. Others attempted to copy commercially successful goods by counterfeiting the successful designers' marks.  This unfair competition motivated the development of systems to protect the originators' marks, thereby protecting their reputations. As legal systems developed the systems to guard makers’ marks became more sophisticated too. Systems of trademark protect were in place during the Middle Ages.  The goals of such systems were to protect consumers from confusion or deception and to protect commercial enterprises from unfair competition.

The United States laws related to trademark evolved from the English Common Law system.  The earliest recognized trademark case in England was Sandforth’s Case from 1584.  Apparently the records of Sandforth’s Case were lost and it is only “referred to in dictum in the non-trademark case, Southern v. How, Popham 143, 79 Eng. Reprint 1243 (1618). (Source: J. Thomas McCarthy, 1 McCarthy on Trademarks and Unfair Competition § 5.2 (2013-date). Modern United States trademark law began with The Trademark Act of 1946 (The Lanham Act) and its subsequent amendments.

Here are some publications that provide more details about the historical background of the development of trademark systems.

Abraham S. Greenberg, The Ancient Lineage of Trade-Marks, 33 J. Pat. Off. Soc’y 876 (1951).

Mark P. McKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev. 1839 -1916 (2007).

Keith M. Stolte, How Early Did Anglo-American Trademark Law Begin - An Answer to Schechter's Conundrum8 Fordham Intell. Prop. Media & Ent. L.J. 505-548 (1998).