Lanham Act: brand owners’ current weapon of choice

As opportunistic price-gougers look to capitalise on the COVID-19 pandemic, brands such as 3M have turned to trademark law to try and stop them. Brian Michalek and Erin Westbrook of Saul Ewing Arnstein & Lehr report.

Since the outbreak of COVID-19, US federal courts have seen an uptick in Lanham Act cases. Unlike a typical Lanham Act case dealing solely with some form of trademark infringement or dilution, these cases have largely attacked third-party price-gouging of key medical supplies needed to combat the disease.

In its purest form, the Lanham Act was designed to protect brand goodwill and recognition. In a typical case, a company may seek to enforce its federal trademark against another company that is using a mark that may be confusingly similar. The COVID-19 pandemic, however, has underscored the need for companies to be equipped with other mechanisms to swiftly forestall price-gouging and protect brand reputation within the public forum.

In this situation, the Lanham Act has allowed medical supply companies to quickly leverage its protections to block unauthorised third-party redistribution and consequent price-gouging of essential medical goods.