Section 44 Unfair Competition

• Library: Commercial Law 2007

Trademark law is embodied in the broader law of unfair competition. The body of unfair competition law includes not only common law, but federal law that has developed under § 43(a), 15 U.S.C. § 1125(a), of the Trademark Act of 1946 (Lanham Trade-Mark Act), 60 Stat. 427, known as the Lanham Act.

Section 43(a) of the Lanham Act prohibits as unfair competition the use in interstate commerce of any “false designation of origin” or “false or misleading description of fact” concerning “goods, services, or commercial activities.” To recover for unfair competition under the Lanham Act, a plaintiff must show:

• that it owns a protectable trademark or trade name (not necessarily a registered mark as required for a trademark infringement action under § 32(1), 15 U.S.C § 1114, of the Lanham Act); and

• that the defendant has used in commerce a similar mark that is likely to cause confusion as to the source of the defendant’s goods or the involvement or association of the plaintiff in the defendant’s business

SeeHallmark Cards, Inc. v. Hallmark Dodge, Inc.,634 F. Supp. 990, 997 (W.D. Mo. 1986); Emerson Elec. Co. v. Emerson Quiet Kool Corp., 577 F....