University of Baltimore Intellectual Property Law Journal, Vol. 13, No. 2 (Spring 2005), pp. 57-101


Part I of this article discusses the impact of the Sears, Compco and Bonito Boats, and the uncertainty over whether the principles of federal intellectual property announced in these decisions serve as limitations on the scope of protection that can be afforded under trademark legislation enacted by Congress under its Commerce Clause power. Part II presents the Supreme Court's reaffirmation of fundamental principles intellectual property policy in a series of cases decided in the last decade: Qualitex, Wal-Mart, TrafFix, Mosley and Dastar. Part III summarizes some of the common themes emerging from these decisions and explains how the Court has recognized the primacy of the Intellectual Property Clause and thereby protected the public domain. This section also discusses the Supreme Court's decision in Eldred and the possible impact of the majority's explicit deference to the authority of Congress, under the Intellectual Property Clause, to set intellectual property policy.