Trademark Infringement and the Lanham Act: The Time for "Willfulness" to be Uniformly Defined and Applied Under the Lanham Act is Now
INTRODUCTION|The Lanham Act, codified under 15 U.S.C. §§ 1051-1129, 1141, prescribes how the owner of a trademark is to register such a trademark with the United States Patent and Trademark Office. Less popularly known as the Trademark Act of 1946, Congress enacted this statute to ensure consumer protection with the goal of organizing trademark laws already found under common law into a set of more easily applicable, codified laws. When studying the Lanham Act, it is important to look at it concurrently with 15 U.S.C. § 1117, commonly known as Section 35 of the Lanham Act, which lays out when monetary recovery is available for the violation of trademark rights. Monetary recovery of profits are outlined in § 1117(a): When a violation of any right of the registrant of a mark registered in the Patent and Trademark Office, a violation under section 43(a) or (d) [15 U.S.C. § 1125(a) or (d)], or a willful violation under section 43(c) [15 U.S.C. § 1125(c)], shall have been established in any civil action arising under this Act, the plaintiff shall be entitled . . . subject to the principles of equity, to recover defendant’s profits . . . .
Creighton University School of Law