| > Trade was in use as “the buying and selling or exchange of commodities” back in 1550. No one is arguing that the word trade didn't exist at the time. But there are several other words that also existed at the time, like business, or work, or production, which they also didn't use. Moreover, the expansive interpretation is inconsistent with the rest of the same article, e.g.: > The Congress shall have Power
> ...
> To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
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> To 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;
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> To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; Counterfeiting and copyright infringement and high seas piracy are all going to affect interstate commerce, so why would they need to be separately enumerated if the commerce clause was intended to make them redundant? > Meanwhile by 1680s commerce was taking on a wider definition than just the act of exchange. At the time something was commercial if it was done for profit. Commerce included the steps in preparation for trade rather than just the exchange of goods. But what is this distinction buying you? Suppose that commerce includes production of goods intended for sale, and then "commerce among the several states" would include production of goods intended for sale between states. That still doesn't get you Wickard, which was production of goods for the direct use of the producer within a single state and continues to manifest the flaw that it omits any discernible limiting principle. > So lost business is a concern. Trademarks aren't about lost business, they're a consumer protection rule designed to prevent fraud. They protect the buyer from being misled about the identity of the seller. This is why you nominally can't sell a trademark. (Businesses use a conceit where they sell the "goodwill" associated with the mark and transfer the mark with it, which is a loophole that the courts have long let them get away with so everybody uses it, but in principle it's not allowed, and this is presumably why you don't see many blatant instances like people openly selling trademarks on eBay.) |