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How to use trademark symbols:
® – Used with USPTO registered trademarks
™ – Used with trademarks not yet registered
℠ – Used with servicemarks not yet registered
USPTO Examination guide 1-19 for cannabis and hemp trademarks
U.S. Constitution, 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.
Congress’s power over trademarks, another form of intellectual property, does not derive from the Intellectual Property (IP) Clause. In The Trade-Mark Cases,1 decided in 1879, the Supreme Court held that Congress lacked power under the IP Clause to provide for trademark protection because trademarks need not be original, creative, novel, nor inventive.2 As a result, the Court was
unable to see any such power [to protect trademarks] in the constitutional provision concerning authors and inventors, and their writings and discoveries.3 In the twentieth century, however, courts have sustained federal trademark legislation as an exercise of Congress’s power under the Commerce Clause.4
As with other forms of intellectual property, Congress’s power over trademarks cannot be used in ways that infringe the constitutional rights of individuals. For example, because trademarks are considered private speech under the First Amendment, the government generally cannot engage in viewpoint discrimination in trademark registration decisions.5
1. The Trade-Mark Cases, 100 U.S. 82 (1879).
2. Id. at 94 (
The ordinary trade-mark has no relation to invention or discovery . . . neither originality, invention, discovery, science, nor art is in any way essential to the [trademark] right . . . .).
4. Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 365 (2d Cir. 1959) (holding that Congress has power under the Commerce Clause to regulate trademarks used in commerce, even if the use is purely intrastate). For an overview of the scope of the Commerce Clause, see ArtI.S8.C3.1 Overview of Commerce Clause.
5. Iancu v. Brunetti, No. 18-302, slip op. at 1 (U.S. June 24, 2019); Matal v. Tam, slip op. at 18, 25–26 (U.S. June 19, 2017); see generally Amdt126.96.36.199 Commercial Speech Early Doctrine.