The Lingering Legacy of Trade-Mark Cases

23 Pages Posted: 26 Jan 2008 Last revised: 21 Sep 2008

See all articles by John T. Cross

John T. Cross

University of Louisville - Louis D. Brandeis School of Law


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 Classification: K1, K30

Suggested Citation

Cross, John T., The Lingering Legacy of Trade-Mark Cases. University of Louisville School of Law Legal Studies Research Paper Series No. 2008-37, Michigan State Law Review, Vol. 1, 2008, Available at SSRN:

John T. Cross (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States
+1.5028520850 (Phone)

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