United States Trademark Law - Differences From Related Laws

Differences From Related Laws

Unlike copyright law which provides for criminal penalties as well as civil damages, trademark law in the United States is almost entirely enforced through private lawsuits. The exception is in the case of criminal counterfeiting of goods. Otherwise, the responsibility is entirely on the mark owner to file suit in either state or federal civil court in order to restrict an infringing use. Failure to "police" a mark by stopping infringing uses can result in the loss of protection.

Also in contrast to copyright or patent law, trademark protection has no expiration. As long as the mark is continually used, it can be protected from infringement indefinitely.

Because federal trademark law is derived from Congress' Commerce Clause power, and not a specific clause in the U.S. Constitution (like copyrights and patents), there must be some degree of interstate commerce present for a trademark to receive Lanham Act protection. The U.S. Supreme Court invalidated the first federal trademark law by finding that Congress could not stretch the Copyright Clause to cover trademarks, so Congress had to fall back to only those trademarks used in interstate commerce instead.