Why Trademarks Matter

Written by Mary Boney Denison

Trademarks Matter

—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.

Lanham Act Book
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.

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