In 2021 Puerto Rico enacted legislation that allowed the government to levy additional fees on vehicle license plates and registration tags bearing the name, image, jersey number 21, and career hit total of the late baseball icon Roberto Clemente. The measure produced roughly $15 million in revenue for the territory.
Roberto Clemente’s sons filed suit under the Lanham Act and the Fifth Amendment’s Takings Clause, contending that the state’s appropriation of their family’s trademark without licensing permission amounted to an uncompensated taking of private property.
The U.S. Court of Appeals for the First Circuit rejected the constitutional claim, reasoning that Supreme Court precedent limits compensation to tangible property and excludes intangible assets such as trademarks from the Takings Clause’s reach.
Historical Protection of Intangible Rights
Long before the modern trademark dispute, the Supreme Court recognized that incorporeal rights — including franchises, easements and contracts — could be protected under the Takings Clause, requiring just compensation when the government appropriated them.
More recent decisions, notably *Horne v. Department of Agriculture* (2015) and *Cedar Point Nursery v. Hassid* (2021), have underscored the importance of the right to exclude and the necessity of fair compensation for property, whether tangible or intangible.
Legal scholars argue that Puerto Rico’s monetization of Clemente’s trademark, without securing a license from his heirs, constitutes an uncompensated taking that threatens the security of modern intangible assets such as brands, trade secrets and business goodwill.
The outcome of the Supreme Court’s review could set a precedent that either extends Takings Clause protections to intangible property or reaffirms the narrow view that only physical assets qualify for compensation, with profound implications for owners of intellectual property across the United States.