Trademark Takings: Trademarks as Constitutional Property Under the Fifth Amendment Takings Clause
Journal of Constitutional Law, Vol. 15:5, pp. 1581-1629, May 2013
49 Pages Posted: 28 Jun 2013 Last revised: 26 Aug 2019
Date Written: May 1, 2013
Abstract
This Comment explores the intersection between trademarks and the Fifth Amendment’s Takings Clause. The thesis is that trademarks — an intellectual property regime caught between its competing aims of protecting consumers and bolstering the rights of trademark owners — currently focuses heavily on the latter, and consequently, amounts to constitutionally protected private property. To this end, the Comment argues that trademarks are both legal private property and constitutionally protected property for purposes of the Takings Clause. Further, the Comment examines potential obstacles and applications of a trademark takings doctrine and concludes that, because the “propertization” of trademarks under the Lanham Act is unlikely to be reined in, courts and scholars should endeavor to fashion workable solutions to the trademark takings issue. The realization that trademarks are constitutional property serves to clarify the present broad scope of the trademark property right and, additionally, sheds new light on intangible takings jurisprudence.
Keywords: trademark, taking, Takings Clause, Fifth Amendment, constitutional property, private property, Lanham Act, intellectual property, intangible taking
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