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Trademark move I write in response to J. Thomas McCarthy’s opinion piece, “The Trademark Act: Move it? How come?” [ NLJ, June 19], in which he ridicules a proposal to move the Trademark Act from title 15 to title 35 of the United States Code. Professor McCarthy insists that the Trademark Act fits comfortably in title 15, so there is no reason to move it. Professor McCarthy never mentions and perhaps fails to understand the principal purpose of the proposal, which is to re-enact the Trademark Act and related laws as part of a positive law title of the code. The proposal to re-enact the Trademark Act as positive law was prepared by the Office of the Law Revision Counsel of the House of Representatives, which is charged by law with maintaining the official version of the United States Code and preparing legislation to enact individual titles of the code into positive law. See 2 U.S.C. 285 et seq. Congress has the goal of enacting all general and permanent laws of the United States into positive law. As part of this process, existing law is reorganized and restated, without substantive change, to improve the overall organization of the code and the particular provisions being re-enacted. The style is modernized, large blocks of text are divided into smaller units with appropriate headings, obsolete provisions are repealed and ambiguities, contradictions and other imperfections are corrected to the extent this can be done without changing the meaning. The resulting positive law title becomes legal evidence of the law rather than merely prima facie evidence. See 1 U.S.C. 204(a). On the whole, the law is made more accessible to all. When Congress first published the code in 1926, none of the titles was positive law. Beginning in 1947, Congress started enacting individual titles of the code into positive law. These include title 17, copyrights, and title 35, patents. The proposal to re-enact the Trademark Act and related laws as part of a positive law title is merely a continuation of the long-term goal of enacting the entire code into positive law. The question, then, is not whether the Trademark Act should be positive law, but where in the code the act should be placed. Title 15, entitled “Commerce and Trade,” currently consists of more than 1,800 pages (in the official government version, which does not include case annotations) and 105 chapters, covering a wide variety of subjects from professional boxing safety to commercial space competitiveness. Professor McCarthy argues that the Trademark Act should remain in title 15 because the constitutional basis for trademark law is the commerce clause. But laws are not classified to a title of the code based on their constitutional underpinnings. Indeed, if all laws based on the commerce clause were classified to title 15, the title would balloon to unmanageable proportions. Instead, it makes sense to divide title 15 into a number of new, smaller titles based on subject matter. This can be done as portions of the code are enacted into positive law. Thus, the choices are whether to put the Trademark Act and related laws into their own title or add them to title 35, patents. Both options are possible, but adding them to title 35 seems like the better option. The trademark laws, by themselves, would make a fairly small title, and it would not make sense in the long run to have a huge number of small titles. But, more importantly, contrary to Professor McCarthy’s view, title 35 would make a good fit. Congress recognized the similar nature of patent law and trademark law when it enacted Section 77 of the Act of July 8, 1870 (ch. 230, 16 Stat. 198), which provided for national protection for trademarks registered in the patent office. Indeed, it is the U.S. Patent and Trademark Office that administers both laws today. No doubt, the enactment of a new positive law title causes a certain amount of disruption, at least in the short run. Experienced practitioners will have to learn new section numbers. But in the long run, the benefits have proven to be worth the cost. Newcomers will find the law much more accessible, for the reasons stated above. Experience with the enactment of other titles has shown that those who resisted the change came to appreciate the change a few years later. The proposal is currently in the form of a draft bill, which has not yet been introduced. The Office of the Law Revision Counsel actively seeks responsible comments from all who might be interested. Information about the proposal and the submission of comments can be found at http://uscode.house.gov/cod/t35. The insights of Professor McCarthy and of other trademark experts and practitioners would be indispensable in producing the best possible positive-law trademark provisions, regardless of where they appear in the code. Peter G. LeFevre Washington The writer is law revision counsel to the U.S. House of Representatives.

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