In Search of the Trade-Mark Cases: The Nascent Treaty Power and the Turbulent Origins of Federal Trademark Law

Abstract

Chronicling the tumultuous birth of federal trademark law in America from 1860 through 1882, In Search of the Trade-Mark Cases examines how understandings of the Treaty Power, Commerce Clause, and Intellectual Property clause shifted through that period. While focused on the Supreme Court's 1879 decision holding the federal trademark code unconstitutional, the history of the acts found unconstitutional and the acts enacted subsequent to the decision for trademarks are likewise examined. Among the discoveries this yields is a greater appreciation for the importance of international treaties in the development of American trademark law, and a clearer picture of how the Supreme Court arrived at its decision that trademarks were not "writings" for purposes of the Constitution.

Keywords: Trademarks, Legal History