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The Oregon Intellectual Property Network produces articles written by Lewis & Clark law students on current intellectual property issues in collaboration with practicing IP attorneys.
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The Scope of Protection Under §§ 2 & 43 of the Lanham Act
by James C. Bartholomew
Both §§ 2 and 32 and § 43 of the Lanham Act can serve as the statutory basis for a trademark infringement claim. Sections 2 and 32 may only be invoked for registered marks whereas § 43 may be invoked for any marks. This Article examines what if any differences exist between the two statutory schemes in determining the threshold question of protectability of a mark. Despite significant differences in statutory language; Supreme Court precedent, lower court case law, and current scholarly criticism all indicate that the standards for protectability of a mark under §§ 2 and 43 do not differ.
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