The Trademark Reporter's 2023 "Annual Review" of U.S. Trademark Cases

The Trademark Reporter has published its latest "Annual Review" of U.S. Trademark Cases: "The Seventy-Fifth Year of Administration of the Lanham Act of 1946," by Theodore H. Davis, Jr. and yours truly, John L. Welch. [download pdf here].

In his introduction, Ted Davis notes the decline in litigation under the Lanham Act, related state statutes, and the common law of unfair competition. In any event, a number of interesting cases have arisen involving the intersection of trademark law and the freedom of speech protection of the First Amendment, with the "Bad Spaniels" dogfight drawing the most attention as it heads to the Supreme Court. The Court will also be reviewing, in the Hetronic case, the nagging issue of the extraterritorial reach of the Lanham Act. The TRUMP TOO SMALL case may also make its way before the Court, the question being whether Section 2(c)'s requirement of consent is unconstitutional when applied to criticism of government public officials or public figures. Meanwhile, the failure-to-function refusal seems to be gaining in popularity at the TTAB, although not so much with trademark practitioners. And two Board decisions indicate that the once formidable claim of fraud on the USPTO is recovering from the near knock-out punch landed in 2009 by the CAFC's Bose decision.

TTABlogger comment: Once again I thank The Trademark Reporter for granting leave to provide a link to this issue, which is Copyright © 2023 the International Trademark Association and reprinted with the permission of The Trademark Reporter®, 113 TMR 1 (January-February 2023).

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Text Copyright John L. Welch 2023.