Comparative Guides
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Results: 4 Answers
Trademarks
1.
Legal framework
1.1
What is the statutory or other source of trademark rights?
 
United States
The United States is a common law jurisdiction, so trademark rights derive from use – if a seller uses a mark to identify goods that it sells or services that it renders, and no one else has senior rights to the mark for those goods or services in the seller’s trading area, the seller has common law rights in the mark.

The federal trademark statute, called the Lanham Act and codified in Title 15 of the United States Code, provides a regime for registration of trademarks that are used in interstate or US-foreign commerce, as well as remedies for infringement, false designation of origin and dilution. The use in US commerce requirement stems from the fact that the US Constitution provides no authority for Congress to enact a national trademark law – the authority for the Lanham Act is the Commerce Clause in Article 1, Section 8 of the Constitution, which gives Congress the power to regulate commerce among the states and with foreign countries. This requirement of use in commerce makes the US federal trademark system very different from those of other countries and foreign applicants that do not understand this may find their rights lost.

Individual states also have laws providing for state trademark registration and, typically, remedies analogous to those provided by the Lanham Act for trademarks, including those not used in interstate or US-foreign commerce.

For more information about this answer please contact: John Crittenden from Cooley LLP
1.2
How do trademark rights arise (ie, through use or registration)?
 
United States
Through use, although federal registration provides expanded protection for trademarks, such as the presumptive nationwide right to use a mark, with priority as of the filing date. See question 1.1.

For more information about this answer please contact: John Crittenden from Cooley LLP
1.3
What is the statutory or other source of the trademark registration scheme?
 
United States
See question 1.1.

For more information about this answer please contact: John Crittenden from Cooley LLP
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