Here’s the latest in a case we’ve been following. The owners of the trademark of the famous baseball player Roberto Clemente asserted a physical takings claim after the Commonwealth of Puerto Rico used a likeness of Clemente on commemorative license plates, among other things. The claims included not only takings, but a Lanham Act claim. The First Circuit rejected the takings claim, concluding that there’s no claim because the analogy between intellectual property and tangible property is incomplete and thus, the categorical takings rules for physical invasions can’t be applied.
The owners have now filed this cert petition, asking the Supreme Court to consider whether the term “private property” in the Fifth Amendment covers intellectual property in the same way it covers plain old private property.
Here are the Questions Presented:
Puerto Rico took the trademark of baseball legend Roberto Clemente to generate roughly 15 million dollars in revenue. The Fifth Amendment protects property “without any distinction between different types.” Horne v. Department of Agriculture, 576 U.S. 350, 358 (2015). But the First Circuit refused to apply per se principles that would ordinarily apply to an appropriation of a property right—all because the Clementes are seeking redress for a taking of their intangible property rights. The First Circuit endowed Puerto Rico with the sovereign immunity of the States and held that the Lanham Act did not properly abrogate that immunity—even though “it is difficult to see how the same inherent sovereign immunity that the States enjoy in federal court would apply to Puerto Rico.” Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Centro de Periodismo Investigativo, Inc., 598 U.S. 339, 354 (2023) (Thomas, J., dissenting).
The questions presented are:
1. Whether the Fifth Amendment exempts intangible property from the per se rules that govern takings of tangible property.
2. Whether Puerto Rico enjoys any form of immunity from suit in federal court and, if so, whether the Lanham Act abrogates that immunity.
Follow along on the Court’s docket here.