American trademark law is expanding. The expansion began with the adoption of
the Lanham Act in 1947. At that time and ever since, commentators and law makers
alike referred to the Lanham Act as a codification of the existing common law. In fact,
this codification was a selection and expansion of the common law. The United States
has continued to expand trademark jurisprudence: from incontestability, to cybersquatting,
to dilution - the notion of what it means to protect a trademark has
continued to expand. During this time, the Commerce Clause on which American
federal trademark protection is based has not changed.
The result of this inextricable expansion is that trademark jurisprudence in the
United States is becoming muddled. Originally, trademark protection was justified
as a right of exclusion that was granted to the user of a sign for their exclusive use
for as long as they used it and to the extent they used it. Now, the trademark right
has come to resemble the moral right of attribution andlor integrity of civil law
copyright systems.
This may be appropriate if the nation had a purposeful debate or discussion on turning
the United States trademark system into a system of moral rights. However, no
such discussion has taken place. Rather, Congress has enlarged the trademark right at
the behest of special interests without paying attention to the consequences. One consequence
is that trademark jurisprudence now has a striking resemblance to that of the
protection offered by moral rights in civil law countries
