Trade-Marks and Advertisements

Article I, Section 8, Clause 8:

[The Congress shall have Power . . . ] 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.

In the famous Trade-Mark Cases,1 decided in 1879, the Supreme Court held void acts of Congress that, in apparent reliance upon this clause, extended the protection of the law to trademarks registered in the Patent Office. “The ordinary trade mark,” Justice Miller wrote for the Court, “has no necessary relation to invention or discovery” ; nor is it to be classified “under the head of writings of authors.” It does not “depend upon novelty, invention, discovery, or any work of the brain.” 2 Not many years later, the Court, again speaking through Justice Miller, ruled that a photograph may be constitutionally copyrighted,3 and still later the Court held a circus poster to be entitled to the same protection. In answer to the objection of the circuit court that a lithograph that “has no other use than that of a mere advertisement” would not be within the meaning of the Constitution, Justice Holmes summoned forth the shades of Velasquez, Whistler, Rembrandt, Ruskin, Degas, and others in support of the proposition that it is not for the courts to attempt to judge the worth of pictorial illustrations outside the narrowest and most obvious limits.4

Footnotes

1

100 U.S. 82 (1879).

2

100 U.S. at 94.

3

Burrow-Giles Lithographic Co. v. Saroney, 111 U.S. 53 (1884).

4

Bleisten v. Donaldson Lithographing Co., 188 U.S. 239, 252 (1903).