Why Trademarks Matter
Written by Mary Boney Denison
—From the Foreword to Fritz Garland Lanham—Father of American Trademark Protection, by Joe Cleveland
This year marks the 75th anniversary of the Lanham Trademark Act.
During his decades of service in the U.S. Congress, Congressman Fritz G.
Lanham worked tirelessly and spent enormous political capital
championing a new trademark bill for the modern era. The Lanham
Act—named in honor of its chief proponent—not only protects American
consumers, it protects the goods and services produced by America’s
businesses. To appreciate Congressman Lanham’s extraordinary gift to our
country, one must first understand the history of trademark protection
and the significance of trademarks to all Americans and to our national
economy.
Today, it seems obvious that a business’s trademarks deserve
protection under a nationwide trademark schema. But that has not always
been the case. Before Congress enacted any federal trademark
legislation, the right to adopt and use a symbol to distinguish a
business’s goods and services was only recognized by American common law
and by the statutes of some states. Indeed, the whole system of common
law trademarks and the civil and equitable remedies for their protection
existed long before any federal trademark legislation enacted by
Congress and remains in full force today. This exclusive right to a
trademark was not created by any act of Congress and does not depend
upon any federal legislation for its enforcement.
As the United States embarked upon the industrial revolution at the
turn of the century, Congress passed several federal trademark
registration laws, but none was adequate to the task. In 1870 and again
in 1905, Congress sought to enact uniform trademark laws, which provided
for the registration of trademarks and remedies for their infringement.
But these civil remedies proved insufficient to prevent pirating a
business’s trademarks. Additionally, while patents are specifically
mentioned in the Constitution, trademarks are not. After all, trademarks
recognized by the common law were generally based on use, rather than
the notion of a new or novel invention. It was only after the U.S.
Supreme Court held that the Congress could enact trademark protection
under the Commerce Clause that the path to nationwide trademark
protection became clear.
Meanwhile, state legislatures began considering trademark bills, which
featured costly compulsory registration and significant ramifications to
trademark owners for failure to register their marks in each state. With
the prospect of various states enacting a patchwork of onerous state
trademark laws, the American Bar Association, or ABA, began to study a
new nationwide law for trademark protection but was unable to obtain
adequate legislative support.
In the fall of 1937, Edward S. Rogers, the dean of the trademark bar,
and Congressman Fritz Lanham, chair of House Subcommittee on Trademarks,
met in Washington, D.C., to discuss the problem. As they discussed a
potential solution, Mr. Rogers presented Congressman Lanham his draft
notes from ABA meetings that had been ongoing to address the need for
federal trademark legislation. After their meeting, Congressman Lanham
undertook the momentous effort to craft and enact nationwide trademark
legislation.
Although interrupted by World War II and a variety of other
challenges, Congressman Lanham persisted. On July 5, 1946, President
Harry S. Truman signed the Lanham Trademark Act into law, almost nine
years after Congressman Lanham took up his gavel to begin championing
the legislation in Congress.
FRITZ GARLAND LANHAM: FATHER OF AMERICAN TRADEMARK PROTECTION
By Joe Cleveland
Bookhouse Group, Inc., $40 (plus $7.50 shipping and handling)
The Texas Intellectual Property Law Foundation commissioned a beautiful
commemorative limited edition book about this important milestone in
trademark protection with all proceeds funding a diversity scholarship
program in Congressman Lanham’s honor. To buy the book, go to www.lanham75.org.
Over the past 75 years, the Lanham Act has stood the test of time.
Since its enactment in 1946, it has been repeatedly challenged and
reviewed by all levels of the federal judiciary, including the U.S.
Supreme Court. It has been amended more than 20 times, and parts have
been declared unconstitutional. Still, the Lanham Act remains the
primary source of statutory protection for trademarks in this
country.
From a practical standpoint, trademarks are critical to the day-to-day
lives of each and every American. Trademarks play a vital role in
helping consumers differentiate goods and services in commerce in the
United States and indeed the entire world. Studies show that children
recognize brands incredibly early in their childhood development. From
my own personal experience, I know that to be true. My daughter—when she
was only two years old—pointed to a VISA® trademark and to my surprise
uttered the word VISA. She could not read; she could not use a credit
card, but she knew the VISA® trademark and recognized its source. From
early childhood until our twilight years, brands serve the essential
role of helping us identify the source of goods and services. Trademarks
permit us to distinguish quality and to understand what we are buying.
And they protect us. They help us identify the goods and services we
want, and they help us avoid fake or dangerous products or fraudulent
services we don’t want.
Counterfeiting has become an enormous global problem with a
significant impact on the economy and the health and safety of all
Americans. In addition, the sale of counterfeit products results in lost
revenues to businesses and lost tax revenues to governments while
generating enormous profits to traffickers who sell counterfeit goods.
Frequently, these traffickers are associated with organized crime and
terrorist groups. Trademarks protect the health and safety of the
American consumer by helping them identify counterfeit products such as
fake medicines, faulty airbags, self-igniting lithium-ion batteries,
adulterated cosmetics, and a great many other dangerous products
introduced into this country’s stream of commerce.
Trademarks also have a significant economic impact. The U.S.
Department of Commerce has studied the impact of intellectual property
on U.S. jobs. The study found that in 2014 almost 24 million U.S. jobs
were in trademark-intensive industries. Including supply-chain jobs, the
number of jobs related to trademark-intensive industries surpass 40
million. Further, according to the study, the average weekly wage
premium of workers in trademark intensive industries was close to 40%
higher than those in non-intellectual property intensive industries.
Trademarks matter. They provide clear guideposts to consumers. They
protect consumers and American businesses. And they promote the national
economy.
Every American owes an enormous debt of gratitude to Congressman
Lanham. He used old-fashioned charm and persistence to usher into law a
landmark bill we now know as the Lanham Act. Because of Congressman
Lanham’s tenacity and perseverance, American consumers, American
businesses, and American commerce have vital protections as we move
forward into the 21st century.TBJ
This article, which was originally published in Fritz Garland
Lanham: Father of American Trademark Protection, has been edited and
reprinted with permission.
MARY BONEY DENISON
served as the commissioner for trademarks for the U.S. Patent and
Trademark Office, or USPTO, from 2015 to 2019, where she oversaw all
aspects of the Trademarks organization, including policy, operations and
budget relating to trademark examination, registration, and maintenance.
Prior to joining the USPTO in 2011, she practiced law in the area of
trademark prosecution and litigation. A graduate of Duke University and
the University of North Carolina School of Law, Denison retired from the
USPTO in 2019 and pursues creative endeavors in North Carolina.
