|
The family of the late National Baseball Hall-of-Fame honoree Roberto Clemente is suing Puerto Rico for the unauthorized physical taking of the Roberto Clemente trademark. The plaintiffs allege that Puerto Rico appropriated the Clemente trademark by requiring motorists to purchase commemerative license plates and registration tags displaying the trademarked Clemente image. According to the plaintiffs, Puerto Rico has refused to share any of the $15 million that it earned from these sales. Although the Constitution’s Takings/Just Compensation clause encompasses both physical and intangible property, the First Circuit held that Puerto Rico’s alleged taking of the Clemente trademark cannot be analyzed as a per se taking.
ALF has filed an amicus brief urging the Supreme Court to grant the certiorari petition in Clemente Properties, Inc. v. Pedro R. Pierluisi-Urrutia (25-1426). The brief was authored for ALF by nationally renowned takings law expert Nancie G. Marzulla of Marzulla Law, LLC.
ALF's Amicus Brief
ALF has asked the Supreme Court to grant the Clementes’ petition for certiorari and adopt a per se taking rule for intangible property rights, such as the Clemente’s trademark. ALF points out that there is nothing in the Fifth Amendment that justifies limiting intangible property rights to a less-protective, regulatory taking standard. The facts here plainly demonstrate that a taking has occurred yet the First Circuit court of appeals, holding that the per se taking standard did not apply, found no compensable taking. Here, Puerto Rico enacted two resolutions that transformed the Clementes’ exclusive use to their trademark, their valuable private property rights, into public property. And so far, Puerto Rico has earned $15 million from its use of the Clemente trademark.
Transforming private property into public property by ipse dixit is exactly what the Fifth Amendment was designed to address by preventing the majority from destroying individual rights with impunity. The regulatory taking standard should not be allowed to shield government against outright appropriations of private property, such as occurred here. This case provides the Court an excellent opportunity to adopt a per se taking rule for the government appropriation of intangible property rights.
| 
