Trademark Complete

Trademark - Lofgren (2026)

Trade-Mark Cases (1879)

- Issue: Did Congress have power to enact federal trademark laws?

- Rule: Trademarks fall outside the IP Clause; federal TM law must rest on another power.

- Outcome: 1870/1876 trademark laws unconstitutional.

- Key Impact: Federal trademark law rests on the Commerce Clause, not IP Clause.

Trademark function

A trademark identifies and distinguishes the commercial source of goods or services.

Historical purpose

Trademark law developed primarily from unfair competition principles designed to prevent dishonest diversion of another producer's trade.

CL Rights

Trademark rights traditionally arise through use, not merely invention or creation.

Lanham Act of 1946

Provides the principal federal statutory framework for trademark law.

• Economic Justification: Reduces search costs + encourages consistent quality.

• Goodwill: Marks represent a producer’s reputation.

• Duration: Potentially indefinite if distinctive and properly used.

Art Attacks Ink, LLC v. MGA Enter., Inc. 2009

Gives us Factors courts consider to establish secondary meaning:

1. Direct consumer testimony

2. Survey evidence

3. Exclusivity, manner, length of use

4. Amount and manner of advertising

5. Amount of sales and number of customers

6. Established place in market

7. Proof of D’s intentional copying

Filipino Yellow Pages, Inc. v. Asian Journal Publications, Inc. 1999

Who Are You/ What Are You Test:

• If primary significance of mark describes the type of product rather than the producer, the mark is generic and unprotectible