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The Plague of Fake News

The Plague Of Fake News And The Intersection With Trademark

In 1988, the United States Trademark Association (USTA),2 a protrademark advocacy group, testified before Congress that, under section 44(d) of the Lanham Act,3 a foreign individual or entity could receive a priority date on their applications and effectively freeze out an American company.4 Occurring in the shadow of the Toshiba-Kongsberg5 scandal that stoked fears of Soviet power and the national fear that Japan’s status as an economic powerhouse would eclipse the United States, the USTA convinced Congress that the United States was disadvantaged to civil law countries (the majority of which have trademark rights subsisting on registration rather than use).6 Consequently, the Intent to Use (“ITU”) registration system was born.7 Prior to 1989 and the ITU legislation, federal trademark rights were gained in the United States through their use in interstate commerce; if there was no use, then a claimant could not prevent a third party from using the same mark.

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