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Intellectual Property Law

This guide outlines sources for intellectual property law research--patents, copyrights, and trademarks.

Trademarks

Trademark Law Basics

A trademark is a word, mark, symbol, or phrase that is used to identify a seller's product and distinguish it from other's products. Trademarks are protected primarily by federal law (although some state actions regarding trademarks are still available). The primary federal statute, the Lanham Act, was enacted in 1946 and is codified as amended in several sections of Title 15 of the United States Code. Trademark registrations are granted by the United States Patent and Trademark Office (USPTO).

Primary Sources of Authority

  • Trademarks are governed by both federal and state law. The Lanham Act, as amended, governs federal trademark protection and is codified in Title 15, Chapter 22 of the United States Code.  For state registrations and actions, the USPTO maintains this helpful chart of state trademark schemes.
  • Case Law - the best way to find trademarks case law is to use statutory annotations--e.g., "notes of decision" in Westlaw or through annotations through LexisAdvance--that relate to specific statutory provisions. In addition, several case law databases are helpful:  search under Westlaw Keynumber 382T (Trademarks) or in Bloomberg's U.S. Patent Quarterly. 

Secondary Sources

Treatises

Secondary sources can give you an overview of the application of the law, some history, citations to primary sources, and analysis on unsettled points of law. Treatises can be an especially good choice for trademark law research because it is an area of primarily statutory law of national importance that is closely tracked by treatise authors. The following treatises are generally regarding as the leading authorities: 

  • McCarthy on Trademarks and Unfair Competition, McCarthy, J. Thomas (2nd Floor, KF3180 .M33 4th) (available to the UNC Law Community through Westlaw). McCarthy is an authoritative source of information and analysis about formulating, registering, licensing, protecting, and litigating trademarks and related rights. In print for 40 years and cited in more than 4,000 USPTO and federal court opinions, McCarthy​ is the leading guide for understanding and applying U.S. trademark law. 
  • Gilson on Trademarks, Lalonde, Anne Gilson (2nd Floor,  KF3180 .G54​) (available to the UNC Law Community through Lexis AdvanceGilson offers comprehensive and current treatment of trademark law in the United States, with clear explanations of basic principles and expert discussion of complex issues. Another highly-cited treatise, Gilson  covers analysis of infringement, trade dress, right of publicity, false advertising, counterfeiting,dilution and trademark law remedies. Gilson also offers extensive practice forms and drafting guides, and an extensive legislative history of the Lanham Act. 

Deskbooks and Introductory Guides 

Deskbooks and practice guides are another good place to start your research, especially if you are unfamiliar with Trademark Law and need a straightforward introduction.  These tools can also be especially helpful for understanding how to address practical issues such as prosecuting a trademark, researching a mark's history, or handling cease and desist letters.

  • Trademark Law Guide (available to the UNC Law Community through Westlaw and to the broader UNC Community through CCH Intelliconnect) This practitioner-oriented guide provides federal and state laws and regulations, full text of court and agency decisions, and explanations and commentary. Arranged by subject matter, explanations cover: qualification as a mark; federal registration; registration maintenance and renewals; state and foreign registration; likelihood of confusion; trademark dilution; civil litigation; Trademark Trial and Appeal Board proceedings; and Internet disputes.
  • Understanding Trademark Law, LaFrance, Mary (Law Study Aids Collection, 4th Floor, KF3180 .L34 2009) A useful study aid and introduction to trademark law basics. 
  • Kane on Trademark Law : a Practitioner's Guide, Kane, Siegrun D. (2nd Floor, KF3180 .K32 6th) (available to UNC Law Community through PLI Discover Plus)

Statutory and Regulatory Research

The Lanham Act (15 U.S.C. 1051 et seq.)

Federal trademark law in the United States traces its roots to the Lanham Act, a law enacted in 1946 to provide for trademark protection, and to protect from trademark dilution and false advertising.  As its placement in Title 15 (on Trade and Commerce) indicates, federal trademark law focuses directly on the impact of trademarks on the facilitation of trade and their impact on consumers. The text of the Act, including amendments, is available online in a number of places, including freely from the U.S. Government Publishing Office, or the Cornell Legal Information Institute

While free versions of 15 U.S.C.  are available online, for most serious research questions it will be more efficient to access this Title through subscription databases that offer citator services, listing cases, regulations, and secondary sources that cite to particular sections of the Act. Two of the best and most frequently used are Westlaw's KeyCite, Lexis Advance's Shepards Reports. Those two services also offer statutory annotations ("Notes of Decision" in Westlaw and "Annotations," located at the bottom of the screen, in Lexis Advance) which categorize and summarize cases that have interpreted specific statutory text. As with any statutory research, consider using the table of contents and internal cross-references rather than just full-text searches to help guide your research through the statutory scheme enacted by Congress. 

Title 37, Code of Federal Regulations 

Title 37, CFR  contains regulations covering patent, trademark and copyright. Although a highly technical area of the law, the regulatory authority of the USPTO is limited and so regulations covering patents are minimal, mostly covering the process of application and issues such as representation before the USPTO. Title 37 is also available online through the US Government Publishing Office (PDF and e-CFR) and from the Cornell Legal Information Institute.

The US Patent and Trademark Office

USPTO Resources

Through its website,  the USPTO publishes a number of useful resources for both individuals and lawyers whose practice addresses trademarks. These include: 

Searching for Trademarks

Searching for Trademarks

At the federal level, trademarks are registered with the USPTO.  Among other things, the USPTO reviews applications and accompanying materials (all applications require some representation of the mark) and assesses the applications's compatibility with federal trademark law and USPTO classification guidelines