Trade-Marks and Advertisements

In the famous Trade-Mark Cases,1583 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.”1584 Not many years later, the Court, again speaking through Justice Miller, ruled that a photograph may be constitutionally copyrighted,1585 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.1586


100 U.S. 82 (1879). back
100 U.S. at 94. back
Burrow-Giles Lithographic Co. v. Saroney, 111 U.S. 53 (1884). back
Bleisten v. Donaldson Lithographing Co., 188 U.S. 239, 252 (1903). back