Phoenix Rising? On the Fall and Potential New Rise of State Trademark Rights

This article addresses the historical interplay of federal, state and common law trademark rights as they relate to the scope of geographic protection. The article looks closely at the narrow context where federal trademark law may arguably provide for state trademark law to prevail. The article notes, however, that the specific state trademark language necessary for that state trademark right to prevail has slowly vanished from most state trademark statutes. Yet while the door has seemed to be closing in this area, a relatively recent case, National Ass'n for Healthcare Communications, Inc. v. Central Arkansas Area Agency on Aging, Inc, suggests that state trademark statutes which provide that their laws should be interpreted “consistent with” the Lanham Act, also may indicate a possible context where state trademark law might prevail.

This interpretation of “consistent with” opens up potentially a whole new avenue for state trademark law to assert itself against federal trademark law.