Trademarks were traditionally protected in the United States only under State common law, growing out of the tort of unfair competition. In 1946, Congress passed the Lanham Act (15 USC §§ 1051 - 1127), which creates federal protection and registration for trademarks, adiministered by the United States Patent and Trademark Office ("USPTO"). State law continues to add its own protection, complementing the federal system.
Unlike copyright law which provides for criminal penalties as well as civil damages, trademark law in the United States is entirely enforced through private lawsuits. The responsibility is entirely on the mark owner to file suit in either state or federal civil court in order to restrict an infringing use. Failure to "police" a mark by stopping infringing uses can result in the loss of protection.
Also in contrast to copyright or patent law, trademark protection has no expiration. As long as the mark is continually used, it can be protected from infringement indefinitely.
A person or business entity acquires rights in a trademark either by using it in the normal course of business (for example on a tag or label for merchandise being sold to the public) or by filing an application for registration of the mark in the USPTO. An application for registration may be based upon actual use in commerce or upon a bona fide intent to use (ITU). An ITU application will not become a registration until documents evidencing actual use of the mark in interstate commerce. Infringing use can only be stopped with actual registration, not an ITU. The value of ITU is in establishing priority--who acquired the right to use the mark first--and so infringers are on borrowed time pending that registration.
An individual may represent himself before the USPTO in attempting to register a trademark. However, there are many pitfalls that can trap someone who is not experienced in trademark prosecution matters. An experienced attorney who specializes in trademark registrations typically will charge $800.00 to $1500.00 for preparing and filing an application for trademark registration. If the application is initially rejected because the mark is deemed descriptive or generic, then there will be additional fees for attempting to overcome such rejections.
Recent developments in U.S. trademark law have included the adoption of the Federal Trademark Dilution Act of 1995 (see dilution under Trademark), and the 1999 Anti-Cybersquatting Consumer Protection Act.
