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92 Journal of the Patent and Trademark Office Society 474


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.