In the Shadow of the Trade-Mark Cases: The 1881 Trademark Act and the Supreme Court

Abstract

In 1879, the US Supreme Court famously struck away federal trademark law in the TradeMark Cases, leading Congress to leap into action and pass a new trademark statute within two years. Much less famously, though, the same thing happened again 24 years later in a largely forgotten case, Warner v. Searle & Hereth, leading to the passage of the 1905 trademark law within two years. This is the story of how a commercial dispute between two early pharmaceutical companies led to the first American trademark law of the 20th Century.

Keywords: trademarks, pharmaceuticals, intellectual property, first amendment, legal history, legislation