Congress amended the Trademark Act of 1946 (the Lanham Act) by passing the Trademark Modernization Act of 2020 (TMA) on Dec. 27, 2020. The TMA makes several changes to federal trademark law, but for franchise businesses, the one big change is with respect to trademark enforcement and the presumption of irreparable harm.

History of the Lanham Act and Its Amendments

Congress created the Lanham Act as a statutory scheme defining federal trademark protection and trademark registration rules. The two requirements for a trademark to be protected under the Lanham Act are that the mark must be in “use in commerce” and it must be distinctive. Under the Lanham Act, trademarks may be registered under the principal register, which confers significant benefits to the holder of the mark, or the supplemental register, which affords limited protection to the holder of the mark including the ability to sue for trademark infringement. The Lanham Act codifies grounds for cancellation of a trademark by a third party, remedies for infringement of trademarks, and abandonment of a trademark. Amendments to the Lanham Act have increased protections to trademark holders by providing criminal penalties for counterfeiting trademarks, adding enforcement remedies, and the award of potential treble damages.

Trademark Dilution Act of 1995 and Trademark Dilution Revisionist Act of 2006

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