Trademark Act of 1946

Understanding Trademarks: The Trademark Act of 1946 and Its Implications

• The Trademark Act of 1946 allows for the registration and protection of titles, names, short phrases, slogans, symbols, or design elements with the US Patent Office.
• Trademarks receive protection, while trade names may not. Tradenames refer to the business entity, while trademarks refer to the product or service.
• Strong marks are distinctive and suggestive of the product and are protected under the ™ act. Weak marks are usually descriptive or generic and may only be granted protection after acquiring a secondary meaning.
• Trademarks are registered with the US Patent and Trademark Office, and incentives for owners of trademarks include exclusive rights, credibility, and the ability to recover damages if infringement occurs.
• Trademarks last for 10 years and can be registered or unregistered. Common law protection may apply to unregistered marks based on prior use in a specific territory.
• Illegal registration of trademarks may result in the loss of the right to register future marks.
• Trademarks can be registered for specified products.
• Genericide occurs when a mark becomes generic in the minds of consumers and can have positive marketing implications but negative trademark protection implications.
• The Trademark Dilution Act of 1996 provides more protection for owners of famous marks against dilution through blurring or tarnishing.
• Fair Use Doctrine allows for the use of trademarks without the author's consent for non-commercial purposes such as criticism, commentary, news reporting, classroom teaching, scholarship, or research.
• Parody is one example of fair use, but four conditions must be met, including the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market or value of the copyrighted work.
• Trademark infringement must cause a likelihood of confusion, while dilution only requires similarity to a famous mark. The plaintiff must prove the capacity of the famous mark to be identified and distinguished and a lessening of that capacity through dilution.