Trademark Law and Practice, Pages 40–43

The Trade-Mark Cases

Supreme Court of the United States, 1879


Three people were arresting for violating Congress's trademark laws. (Selling counterfeit goods)


Does Congress have constitutional authority to pass laws concerning trademarks?


Common law has long recognized a system of trademarks with civil penalties. However, for Congress to pass federal law on the subject, would require the Constitution to provide it such power. Two passages are claimed to provide this.

  • First, it is claimed that Article 1, Section 8, Clause 8 is implied to give Congress such powers to efficiently carry out its actual subject matter of enabling Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
    • While this has been accepted before, trademarks are often not linked to any invention or discovery. They often just grow from continued use accidentally. They do not require any novelty, invention, discovery, or creativity. This clause cannot carry such a law then.
  • The other clause is Article 1, Section 8, Clause 3, which says that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
    • Here, it is claimed that trademarks are important to identify the quality of goods in interstate commerce. However, this law would apply to all trade, including intrastate commerce just as much. This clearly exceeds the bounds of the Constitution.


No, general laws concerning trademarks in general affect all trade and thus are unconstitutional.


This is before *Wickard v. Filburn*, which would permit trademark regulation under the commerce clause, as done under the Lanham Act.