State Sovereign Immunity and Intellectual Property: An Evaluation of the Trademark Remedy Clarification Act’s Attempt to Subject States to Suit in Federal Courts for Trademark Infringements Under the Lanham Act

Authors

Jennifer L. Fessler

Abstract

There are two things that can be learned from this paper. First, the analytical framework developed by the Court in City of Boerne is a stringent test that has considerably narrowed Congress’s ability to abrogate state’s Eleventh Amendment immunity through legislation. Second, only half of the battle was won when Congress enacted the Trademark Remedy Clarification Act. Although it met the new requirements the Court placed on legislative efforts in Atascadero, it is not able to meet the requirements that were later set forth in Seminole Tribe. The Rehnquist Court’s holdings indicate the Court’s active pursuit of state’s rights. These decisions have interpreter the Fourteenth Amendment very narrowly. Under this line of reasoning the TRCA would fail again if it were to be evaluated.

Recommended Citation

Fessler, Jennifer L. (2008) "State Sovereign Immunity and Intellectual Property: An Evaluation of the Trademark Remedy Clarification Act’s Attempt to Subject States to Suit in Federal Courts for Trademark Infringements Under the Lanham Act," University of Massachusetts Law Review: Vol. 3: Iss. 1, Article 2.
Available at: https://scholarship.law.umassd.edu/umlr/vol3/iss1/2