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US Law: interstate commerce, trademark violation

Are these statements true or false?

The Commerce Clause to the U.S. Constitution provides that only Congress may regulate interstate commerce and therefore any attempt by a state to regulate commercial activity that affects business crossing state lines is unconstitutional.

A legitimate defense to a claim of trademark violation is that the use of the plaintiff's mark was within the scope of "fair use," that is, it was done (1) for noncommercial purposes, (2) the mark is informational rather than creative, (3) the defendant's use of the mark is substantially different than the original mark used by the plaintiff, and (4) the value of the plaintiff's mark is not diluted by the defendant's use of the mark.

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The Commerce Clause to the U.S. Constitution provides that only Congress may regulate interstate commerce and therefore any attempt by a state to regulate commercial activity that affects business crossing state lines is unconstitutional.

TRUE

Among the powers granted to Congress in Article I, Section 8 of the U.S. Constitution is the power to regulate interstate commerce. Over time, legislators, lawyers, politicians, and business people have argued over just what the commerce power means. For instance, it may be clear that the commerce power would give Congress the ability to make laws regarding transportation networks, such as train lines and highways that cross state lines. However, would the commerce power give Congress the ability to establish regulations on the production of goods and services that will eventually cross state lines? These and other questions regarding the commerce power have been answered by numerous cases heard by the Supreme Court of the United States (see activity titled "How Interpretation of the Commerce Power Has Changed over Time"). However, the question of what the Commerce Clause entitles Congress to do and legislate on is still a very open question.
Since the mid-1930s, Congress and the Supreme Court of the United States have tended to view the commerce power rather expansively. In other words, the commerce power is used to justify a wide range of powers and legislation, some of which have only a marginal link to interstate commerce. For an idea of how Congress views the link between its lawmaking and commerce, you can go to the Library of Congress Web site and click on the "Thomas: Legislative Information" link

A legitimate defense to a claim of trademark violation is that the use of the plaintiff's mark was within the scope of "fair use," that is, it was done (1) for noncommercial purposes, (2) the mark is informational rather than creative, (3) the defendant's use of the mark is substantially different than the original mark used by the plaintiff, and (4) the value of the plaintiff's mark is not diluted by the defendant's use of the mark.

TRUE

1125. False designations of origin, false descriptions, and dilution forbidden
(4) The following shall not be actionable under this section:
(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary.

(i) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to-
(I) the trademark or other intellectual property rights of the person, if any, in the domain name;
(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
(IV) the person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
(V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person's prior conduct indicating a pattern of such conduct;
(VII) the person's provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person's prior conduct indicating a pattern of such conduct;
(VIII) the person's registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person's domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1) of this section.
(ii) Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.

An exception to the rule of copyright infringement is the concept known as fair use, which permits the reproduction of small amounts of copyrighted material when the copying will have little effect on the value of the original work. Examples of fair use include the quotation of excerpts from a book, poem, or play in a critical review for purposes of illustration or comment; quotation of short passages in a scholarly or technical book to illustrate or clarify the author's observations; use in a parody of some of the work being parodied; summary of a speech or article, with brief quotations, in a news report; and reproduction by a teacher or student of a small part of a work to illustrate a lesson. Because works produced and published by the U.S. government cannot be copyrighted, material from the many publications put out by the U.S. Government Printing Office may be reproduced without fear of infringement

The fair use
A belief (or system of beliefs) accepted as authoritative by some group or school doctrine is a body of the collection of rules imposed by authority law and court decisions which provides for limitations and exceptions to copyright protection in the Quick Facts about: United States
North American republic containing 50 states - 48 conterminous states in North America plus Alaska in northwest North America and the Hawaiian Islands in the Pacific Ocean; achieved independence in 1776United States as well as other parts: intellectual property

Intangible property that is the result of creativity (such as patents or trademarks or copyrights) intellectual property-related law, such as those governing about: trademark

A formally registered symbol identifying the manufacturer or ...

Solution Summary

The 4400+ word solution provides well-supported legal opinions for the response. It is an exceptionally long and detailed explanation with a number of court cases cited particularly about the trademark violation issue.

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