Intellectual Property Law Commons^™

Unconstitutional Incontestability? The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. V. Silstar Corp, Malla Pollack

Seattle University Law Review

This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read with the Commerce Clause, prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations; (2) Because such limits exist, even incontestable trademarks must be subject to functionality challenges in order to prevent conflict with the Patent Clause; (3) The Intellectual Property Clause requires a similar challenge to prevent conflict with the Copyright Clause; (4) The states are also limited by either direct constitutional mandate or statutory preemption. Based on the first two assertions, this article argues that the Fourth Circuit's decision …