Foundations—Underlying Rationale for Trademark Law

• Jurisdiction: Maryland

I. FOUNDATIONS—UNDERLYING RATIONALE FOR TRADEMARK LAW

A. Introduction

If there is anything to retain about trademark law, the precept around which all trademark law revolves is—"likelihood of confusion." From those three words flow statute, case law, and regulations relating to the use, misuse, and protection of trademarks.

As examined throughout this chapter of the Handbook, trademark rights are based on use of a mark in connection with goods and services. Merely using a mark affords protectable "common law" rights where the mark is used. Federal registration enhances those rights, and the Lanham Act (15 U.S.C. §§ 1051-1141) provides a framework for protection.

This chapter describes many particulars of trademark law, with a leaning toward how the issues are important to a Maryland-based practitioner. All laws and processes, however, cannot be fully appreciated without first understanding the theories upon which trademark law, and the focus on "likelihood of confusion," are based.

B. Indication of Source

Trademarks must serve to indicate the source of goods or services.¹ A trademark owner controls where the product is made, where the service is offered, the constituent parts of any product using the trademark, and every other aspect of the good or service offered. Just like livestock, a product or service is "branded" to indicate who owns and thus controls the good or service. When a consumer sees a product, a store, an online website, or other offering in the marketplace, trademarks immediately identify to the consumer who is offering the products or services...