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31 UCLA L. Rev. 671 (1983-1984)


Statutes, like human beings, may experience a mid-life crisis. One notable illustration of this phenomenon is Section 43(a) of the Lanham Act of 1946. This provision, offering federal protection to businesses against many forms of unfair competition engaged in by their rivals, has been the subject of varied and inconsistent judicial treatment. Just as with a growing child, the first eight years of this statute's existence were characterized by few lasting achievements.

Then a landmark decision in 1954 recognized and liberated Section 43(a)'s potential. The past two decades have seen an explosion in the kinds of actions brought under this provision. Now that Section 43(a) is recognized as a major weapon in the fight against unfair competition, however, some courts have resisted its expansion, or have contracted its reach. Thus, the fate of Section 43(a) remains uncertain.

This Article proposes the expanded availability of Section 43(a) to allow injured businesses to counter a wide variety of competitive wrongs. It is important that there be a uniform, federal law of unfair competition. Although imaginative attorneys have inappropriately attempted to use this statute for situations for which it was never designed, some courts have also refused to apply the statute to unfair and anticompetitive conduct which may demand relief.

The first three sections of this Article briefly review the law of unfair competition prior to the enactment of Section 43(a) of the Lanham Act, the legislative history of that provision, and those cases marking its early development. The Article then presents a description of those activities which fall within the statute, and analyzes the limitations imposed by various other courts.

The last section begins with an examination of the goals of the trademark laws and of the policy considerations implicated by a broader versus a narrower application of this particular statutory provision. It analyzes the need for a uniform federal approach to unfair competition and discusses particular problem areas under Section 43(a). Finally, this Article argues that the expansion of the Act to cover doubtful activities -- harmful, unfair, or deceptive business practices -- is both necessary and appropriate, and that the extension of the statute to encompass certain other forms of unfair competition would also be desirable.


Reviewed: 75 Trademark Rep. 216 (1985); Reprinted: 17 Intellectual Property Law Review 227-309 (1986)


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