Globalization has its critics, but it seems that American trademark law is increasingly coming to terms with it — particularly after a pair of recent appeals court rulings in favor of Trader Joe’s and Bayer stepped beyond national boundaries.
In the span of the last six months, the Fourth Circuit and the Ninth Circuit have both issued important rulings on how the Lanham Act, with its jurisdiction limited to issues involving American commerce, should operate in a world economy that is increasingly borderless.
In both cases, the appeals courts showed an unwillingness to let the law be constricted by national boundaries, instead issuing expansive rulings that erred on the side of preventing confusion in the marketplace — the very thing trademark law was designed to do.
“This was the core harm the Lanham Act is designed prevent, and the only defense was that they were on the other side of a border,” said Keith Toms, a partner with McCarter & English LLP. “The court saw there was something significantly wrong, and it said there has to be enough flexibility in the law to account for that.”