Trademark Law

Trademark law protects brands. If Coke thought customer’s might confuse a competitor’s product with its own, they could pursue trademark infringement claim against the competitor. Both state and federal laws offer trademark protection.  

State trademark protections are a mix of statutes and common law. Trademark owners can register with their state, but the protections are not as broad as those offered through federal registration. Looking at Virginia as an example of a state system, trademark registration and protection are governed by the Virginia Trademark and Service Act (1998); while it is the common law, as laid out in judicial opinions, that describes other areas of trademark law - i.e. “it is axiomatic that use, not registration, gives priority to trademark and service mark rights at common law.” SCLC v. Shannon, 270 Va. 104, 109, 613 S.E.2d 596, 600 (2005). 

On the federal side, the U.S. Constitution does not provide for trademark protection as it does with patent and copyright protections. Instead, Congress has used its power to regulate interstate commerce as the basis for trademark legislation. The Lanham Act (officially called the 1946 Trademark Act) and its many amendments constitute the main federal trademark statute today. Trademark owners have the option to gain additional protections by registering their marks federally with the United States Patent and Trademark Office (USPTO).  

For a broader introduction, we recommend Principles of Trademark Law (available on West Academic Study Aids) or other study aids or hornbooks, available through the Law Library’s subscriptions. For more detailed questions or in-depth discussions, consult one of the treatises listed in this guide under theTreatises tab to the left.