The Trademark Reporter has published its latest Annual Review of U.S. Trademark Cases: "The Seventy-Fourth Year of Administration of the Lanham Act of 1946," by Theodore H. Davis, Jr. and yours truly, John L. Welch. [download pdf here].
In his introduction, Ted Davis notes that, despite the lack of Supreme Court cases to report this time around, there are plenty of notable developments to discuss. One involved the role of the Trademark Modernization Act in protecting the installation of the Trademark Trial and Appeal Board's administrative law judges against constitutional attack, and another the TMA's restoration or validation of the presumption of irreparable harm in Lanham Act cases. Both the courts and the Board clamped down on claims of rights in so-called nontraditional marks, thorough findings of genericness, functionality, and (the "original sin" of trademark law) failure-to function. On the procedural side, the CAFC's recent rulings on "standing" have transformed what used to be a straightforward issue into a complicated one, particularly with the recent Brooklyn Brewery decision requiring Article III standing in order to appeal an adverse Board decision.
TTABlogger comment: Once again I thank The Trademark Reporter for granting leave to provide a link to this issue, which is Copyright © 2022 the International Trademark Association and reprinted with the permission of The Trademark Reporter®, 112 TMR 1 (January-February 2022).
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