15 U.S.C. §§ 1114, 1125(a)
Lanham Act: trademark infringement and false advertising
A federal claim in United States district courts · Last verified August 26, 2026
The Lanham Act carries two claims that look unrelated and share a section: trademark infringement and false advertising. Both are about commercial deception, and both are brought by businesses against businesses.
Two features surprise people. You do not need a registration to sue — trademark rights in the United States come from use, and the statute protects unregistered marks. And there is no statute of limitations at all, which sounds generous and is not.
What the claim is
Trademark infringement. A competitor is using a mark close enough to yours that customers are likely to be confused about who they are dealing with.
False designation of origin. Passing off goods as someone else's, or suggesting a sponsorship or affiliation that does not exist. This is the provision that protects unregistered marks and trade dress.
False advertising. A competitor made a false or misleading factual claim in commercial advertising — about its product or about yours.
Where the right comes from
Two express rights of action. One covers infringement of federally registered marks. The other is broader and needs no registration:
Any person who, on or in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device ... which is likely to cause confusion ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
That subsection splits in two: one branch reaches confusion as to origin or sponsorship, the other reaches false advertising.
What a plaintiff has to prove
For infringement or false designation:
- The plaintiff owns a valid, protectable mark.
- The defendant's use in commerce creates a likelihood of confusion.
Likelihood of confusion is judged by a multifactor test, and every circuit uses its own named version of it. The Second, Third, Sixth, and Ninth Circuits each apply a differently formulated list. The factors overlap heavily — strength of the mark, similarity, proximity of the goods, evidence of actual confusion, the defendant's intent — but the formulations are not interchangeable, and a brief should cite the forum's own test rather than a generic one.
For false advertising, five elements:
- A false or misleading statement of fact in commercial advertising.
- It deceived, or tends to deceive, a substantial segment of the audience.
- The deception is material — likely to influence a purchasing decision.
- The statement entered interstate commerce.
- The plaintiff has been or is likely to be injured as a result.
Puffery — vague superlatives no reasonable buyer treats as a factual claim — is not actionable.
How long you have to file
There is no express limitations period. Courts have historically borrowed an analogous state period and applied laches, the equitable doctrine barring a plaintiff who slept on rights to the defendant's prejudice.
Do not read "no statute of limitations" as "no deadline." Laches can end a claim brought after delay, and the borrowed period tends to function as a rough dividing line: file inside it and you are presumptively fine, file outside and you are presumptively not.
The honest answer is that this area is unsettled and circuit-specific. Supreme Court decisions limiting laches in copyright and patent, where express periods exist, have unsettled its role here too. Do not rely on a single national number for a Lanham Act deadline — there is not one, and sources that supply one are guessing.
What has to happen before you file
Nothing administrative.
One point of sequencing: infringement of a registered mark requires a federal registration on the principal register. The broader unfair-competition provision requires none, which is why plaintiffs with unregistered marks or trade dress plead it instead.
Who can be sued — and who cannot
Anyone using the mark in commerce in a way likely to confuse, including online sellers and platforms in some circumstances.
Consumers cannot bring false advertising claims. This is the most consequential standing rule in the statute. In Lexmark International v. Static Control Components the Supreme Court held that a plaintiff must fall within the statute's zone of interests — a commercial interest in reputation or sales — and show injury proximately caused by the misrepresentation. A person who bought a falsely advertised product has been injured, but not in the way this statute protects. Their remedy is a state consumer-protection law.
Direct competition is not required. A supplier harmed by lies told about a downstream product can sue.
The reach of the statute stops at the border. In Abitron Austria GmbH v. Hetronic International (2023) the Court held the infringement provisions are not extraterritorial and apply only where the infringing use in commerce is domestic.
Common defenses
No likelihood of confusion — the main event.
Classic fair use, where the defendant uses the words descriptively to describe its own product rather than as a brand.
Nominative fair use, where the defendant refers to the plaintiff's product by name because there is no other way to talk about it. A repair shop advertising which cars it services is the standard example.
Genericness, which kills the mark outright. Escalator and aspirin were once brands.
Abandonment through non-use or uncontrolled licensing.
Functionality, the answer to a trade dress claim over a feature that exists because it works, not because it identifies a source.
Expressive use — but narrowed. In Jack Daniel's Properties v. VIP Products (2023) the Court held unanimously that the threshold First Amendment test does not apply when the accused use is source-identifying — using the mark as a mark. A parody sold as a brand gets ordinary likelihood-of-confusion analysis, not special protection.
Laches and acquiescence.
What the claim pays
Injunctions, which are the usual objective.
The defendant's profits, the plaintiff's damages, and costs. Damages can be enhanced up to three times. Counterfeiting carries its own statutory damages.
Willfulness is not required to recover the infringer's profits. The Supreme Court held so in Romag Fasteners v. Fossil (2020) — willfulness is a factor in the equitable calculation, not a precondition.
But whose profits? In Dewberry Group v. Dewberry Engineers (2025) the Court held unanimously that "defendant's profits" means the named defendant's profits, not those of affiliated companies that were never sued. A roughly $43 million award was vacated on that basis. If the money sits in a corporate sibling, name it.
Attorney's fees only in exceptional cases — a case that stands out for the weakness of a party's position or the unreasonable way it was litigated. Most circuits apply the standard developed in patent law.
What people get wrong
"I need a federal registration to sue." No. The unfair-competition provision protects unregistered marks and trade dress. Registration brings advantages — a presumption of validity, nationwide constructive notice, access to the registered-mark provision — but it is not a precondition to suing.
"A parody is automatically protected." Not after Jack Daniel's, if the parody is being used as a brand.
"I have to prove they did it on purpose to get their profits." No, not after Romag.
"I bought a falsely advertised product, so I'll sue under the Lanham Act." Consumers lack standing. Look to state consumer-protection law.
"There's no deadline because there's no statute of limitations." Laches will end a stale claim.
"Registering the trademark creates the rights." In the United States, use creates the rights. Registration records and strengthens them.
Where it came from
The Lanham Act passed in 1946, consolidating a patchwork of common-law unfair competition and weak earlier registration statutes into a federal system. The premise it rests on is still doing the work: trademark rights arise from use in commerce, which is why the unregistered-mark provision is as powerful as it is.
Later additions include federal dilution protection for famous marks, first in 1995 and revised in
- The Trademark Modernization Act of 2020 restored a rebuttable presumption of irreparable harm
for injunctions, which had eroded after the Supreme Court tightened injunction standards generally.
The false advertising branch has evolved into something Congress may not have foreseen: a competitor-driven consumer-protection regime, enforced by rivals with the resources and the motivation to police claims that no individual buyer could afford to challenge.
Common questions
Do I need a registered trademark to sue for infringement?
No. The Lanham Act's unfair-competition provision protects unregistered marks and trade dress. Registration is required only for the separate registered-mark infringement claim, and it brings procedural advantages worth having.
What is the statute of limitations for a Lanham Act claim?
There is no express period. Courts borrow an analogous state period and apply laches. The interaction between the two is unsettled and varies by circuit, so no single national number is reliable.
Can a consumer sue for false advertising under the Lanham Act?
No. Standing is limited to plaintiffs with a commercial interest in reputation or sales who were proximately injured by the deception. Consumers must use state consumer-protection statutes.
Do I have to prove the infringement was willful to recover the defendant's profits?
No. Since Romag Fasteners v. Fossil in 2020, willfulness is a factor courts weigh, not a threshold requirement.
Can I recover profits earned by the defendant's parent or sister company?
Not without naming them. In Dewberry Group v. Dewberry Engineers the Supreme Court held that "defendant's profits" means the named defendant's profits, absent grounds to disregard the corporate separation.