Trademarks, Patents, and Trade Secrets
Copyright, trademarks, and patents are typically grouped into an area of the law that has become known as intellectual property. Trade secrets are sometimes included in this area as well. Most of this chapter is devoted to trademarks because this is an area of the law that has a substantial impact on advertising and public relations. It also deals briefly with patents and trade secrets. The next chapter focuses entirely on copyright.
The constitutional origins of intellectual property, at least for copyright and patents, can be traced to Article I, § 8, of the U.S. Constitution, which provides, among other powers, that Congress shall have the authority "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." 1 Patents and copyrights are regulated almost exclusively by federal statutes (Titles 35 and 17 of the U.S. Code, respectively) because Congress has chosen to invoke the preemption doctrine granted under Article VI of the U.S. Constitution (known as the "supremacy clause"), which provides, in part:". . . This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." 2
Exclusive federal regulation of copyrights and patents is also justified under the "commerce clause" in Article I, § 8 of the U.S. Constitution, which provides that Congress shall have the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. . . ." 3
In contrast, trademarks and trade secrets involve both state and federal law, as well as common law, although state laws are not permitted to conflict with