Copyright (c) 1994 DePaul University
DePaul Business Law Journal
NOTE: THE 1988 TRADEMARK LAW REVISION ACT: DAMAGE AWARDS FOR FALSE ADVERTISING AND CONSUMER STANDING UNDER SECTION 43(a) -- CONGRESS DROPS THE BALL TWICE
6 DePaul Bus. L.J. 361
George Russell Thill
The Lanham Trademark Act, 1 signed into law in 1946, was the first viable step toward substantive federal trademark legislation in the United States. 2 Primarily designed to regulate the use of "marks" 3 in interstate commerce, the Lanham Act greatly increased the scope of nationwide protection that, at the time of its enactment, was inadequately furnished by a weak federal statute 4 and was not contemplated by state law. 5 Over the ensuing decades, the Lanham Act has
proven to be a particularly effective mechanism for promoting the various policies 6 and functions 7 that underlie trademarks.
Although the Lanham Act was primarily enacted for trademark purposes, one section of the Lanham Act -- section 43(a) 8 -- created a new federal cause of action for unfair competition. 9 At first blush, section 43(a) seems somewhat out of place in a trademark statute; there are no registration requirements, nor are there any references to "marks." Most likely, section 43(a) was an afterthought by the drafters and was probably included in the original Act because trademarks have traditionally been considered to be within the broader ambit of unfair competition. 10 Nonetheless, for several years after its first en actment, courts applied section section 43(a) sparingly and restrictively. 11 In fact, not until 1954 did a court authoritatively declare that section 43(a) created a federal cause of action against misrepresentations about product quality. 12 More recently, however, section 43(a) has been interpreted more liberally and has ...
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