Intellectual Property Newsletters

Copyright and the Commerce Clause

The Commerce Clause of the U.S. Constitution gives Congress the authority "to regulate commerce with foreign nations, and among the several states." Starting at the time of the New Deal, the courts have read that clause expansively, saying that it gives Congress the authority to regulate virtually anything that affects interstate or foreign commerce. Federal trademark protection gets its authority from the Commerce Clause, and trademarks are protected as long as they are being used.

Copyright as Community Property

Copyright and community property are both branches of property law. Although copyrights are created by federal law they are subject to some state law control as well. Copyright enforcement relies on state rules that are generally applicable to property. Under community property laws, a husband and wife become the co-owners of such property as may be owned or acquired by either spouse if and to the extent that such property falls within the definition of community property. A copyright work authored by a spouse during the marriage is community property.

Patent Law: Hatch-Waxman Act

(The Hatch-Waxman Act )

Trademark Fair Use

A party is entitled to use a trademark in such as way as to describe the qualities that a mark represents as long as the manner of use of the mark is not as a trademark but only used in a descriptive sense. Fair use of a trademark occurs when a defendant uses a descriptive trademark of another party to describe the defendant's own product. This is the fair use defense set forth in the Lanham Act that provides:

Typeface as Trademark Subject Matter

There are three types of protection that can be afforded to typefaces and fonts in addition to basic license agreements: trademark, design patent, and copyright. These are intended to keep non licensees from copying the fonts in some way and passing them off as original material. The trademark system is the weakest form of protection, allowing only the font name itself to be protected. This means that no one is allowed to use a currently existing typeface name for a new font, even if the fonts are completely unrelated. The design patent system is the strongest, but it is the most uncommon type of protection.