Originality has been described as "founded in the creative powers of the mind... the fruits of intellectual labor,"

—the Supreme Court struck down trademark legislation as outside the boundary of Congress' power under both the Copyright Clause and the Commerce Clause.

At common law the exclusive right to [a trademark] grows out of its use, and not its mere adoption.... It is simply founded on priority of appropriation

Property in trade-marks and the right to their exclusive use rest upon the laws of the several States, and depend upon them for security and protection; the power of Congress to legislate on the subject being only such as arises from the authority to regulate commerce with foreign nations and among the several States and with the Indian tribes.

In 1879, the Supreme Court held that Congress lacked power to regulate trademarks under the Intellectual Property Clause.

However, it is well established that "[t] he ordinary trademark has no necessary relation to invention or discovery."

The originality requisite for copyright protection requires "independent creation plus a modicum of creativity." Id

To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty

—the Supreme Court addressed the issue of whether Congress could constitutionally enact legislation protecting trademarks.

One of the first Supreme Court cases to interpret the copyright clause said that writings must consist of "the fruits of intellectual labor