> Outside of the courtroom, that works for me, too. In the courtroom,
> however, you can run into such issues as: if the Fed Gov takes it away
> from me, do I get compensation? Due process? Uh, nope, as to the
> former, and kind of wishy - washy as to the latter: you'd typically
> get due process, but if you did not I'm not sure what you'd do about
> it. The bottom line is that in litigation, the status of being
> property or not makes a hurkin' big difference. So use it for
> convenience, as you said, but don't get too married to the idea.
It is an interesting concept that something which is created by Federal
statute is not "property" subject to the restrictions imposed by the 5th
and 14th amendments.
I just did a quick scan and I do find indications that at the level of the
Supreme Court that some rights created by statutes and common law are
indeed considered "property" and protected. For example, trade secrets
under Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). (This is under
the Takings clause and is thus not strictly on-point, but it is closely
related.)
My quick scan indicated that this is a very complex area with lots of
factual analysis, and lots of cases going either way.
Then I took a look at Door Systems v Pro-Line from which you quote your
support about trademarks not being property. To my reading that is dicta
and not at all part of the holding. If one removed that statement
regarding property, the Court's logic would still follow the same path. In
other words, the statement about trademarks and property is a logical
no-op, contributing nothing for and nothing against the conclusion which
is eventually reached.
But your warning is well taken, that trademarks, because they are
statutory creations, can be eliminated by legislative actions.
I'm not sure at all how we got down this pathway -- clearly any change
that modifies the rights, either by expansion or contraction, of holders
of marks would be something of significant import and probably would
require positive action at the highest legislative and judicial levels.
Any not to forget the ying to the mark holder's yang, any change that
reduced the freedom to use names which are not marks at all or to use
names in areas not covered by the existing scope of a mark is an act of
similar import and significance.
--karl--
