Rosen on the Trademark and the Treaty Power

Zvi S. Rosen’s essay, Treaty Power Justifications for Early Federal Trademark Laws, is available on-line from the University of Pennsylvania’s Journal of Constitutional Law 16 (2013): 1-13.  Here is the abstract:

On November 5, 2013, the Supreme Court will hear oral argument in Bond v. United States, marking the second time the Pennsylvania woman will appear before that tribunal. Bond was charged under 18 U.S.C. § 229(a)(1), a statute designed to implement the 1993 Chemical Weapons Convention. A scholarly debate has since raged about the scope of Congress’s powers to enforce treaties. Can Congress do under the treaty power what it could not otherwise do under Article I’s enumeration of powers?

Professor Rosen examines the federal trademark laws from the mid-nineteenth century. The Supreme Court held that the 1870 Trademark Act was not a valid exercise of either the Commerce Clause or the Intellectual Property Clause, forcing Congressional sponsors of the 1881 Trademark Act to “the idea that the treaty could provide its own constitutional justification under the power to make treaties and the Necessary and Proper Clause.”

This Essay analyzes claims about the federal treaty power made by contemporaneous litigants, newspapers, and politicians in order to draw lessons for the issues at the heart of Bond v. United States.