IP Topics
By Joseph F. Nicholson and
Maria Luisa Palmese
- April 2008
This chapter first appeared in Trade Mark Litigation.
SOURCES OF LAW
1.1 What are the principal sources of law and regulation relating to trademarks and trademark litigation? (Briefly describe the role of international, federal or state laws and relevance of court decisions, list and briefly describe relevant statutes and international treaties).
The principal sources of law are both statutory and common law. In the US, there are two types of statutory law – federal laws enacted by the US Congress and state laws enacted by individual states. Trade mark law is governed by both federal and state laws. Unlike patent and copyright law, trade mark law is not expressly authorised in the US Constitution. Rather, the US Congress has federal power over trade marks only indirectly through the broad Commerce Clause in the Constitution, which grants the power to regulate commerce with foreign nations, among the states, and with Native American Tribes. The federal trade mark laws are embodied in Title 15, Chapter 22 of the United States Code, originally passed as the Lanham Act in 1946. In addition to the federal laws which reach only foreign and interstate commerce, most states have substantive trade mark laws for trade marks used within the state. Most state trade mark laws are construed in the same way as the corresponding federal trade mark laws. The federal laws of Title 15 also give certain rights to trade mark owners from countries who share membership with the US in international trade mark treaties or countries who otherwise reciprocate trade mark rights to the US. The most prominent of these international trade mark treaties is the Paris Convention treaty, which has over 110 member countries.
The US legal system is also a common law system which relies on judicial precedent. Accordingly, court decisions are a vital part of trade mark law and litigation. They interpret the constitution and statutes, and in some cases, create law in and of themselves.