The Lingering Legacy of Trade-Mark Cases

Abstract:     
This article explores the legacy of the Supreme Court's 1879 decision in Trade-mark Cases in the field of intellectual property law. But it explores that legacy from a somewhat unorthodox perspective; namely, by imagining what might have happened had the Court decided the case the opposite way. Opening that imaginary door reveals some interesting possibilities. At the very least, a different result in Trade-mark Cases would have dramatically altered the course of United States trademark law. In addition, depending on the reasoning the Court employed to reach a contrary holding, much of federal intellectual property law might look quite different than it does today. On tis latter point, the article questions the Court's axiom that creativity is a sine qua non of federal protection under the Intellectual Property Clause.

JEL Classifications: K1, K30

Accepted Paper Series