Amicus Brief: Clemente Properties v. Pierluisi-Urrutia

Roberto Clemente’s sons and their companies have spent decades protecting the baseball legend’s name, image, and trademark. In 2021, however, Puerto Rico enacted laws requiring motorists to pay for license plates and registration tags bearing Clemente’s mark. The program generated roughly $15 million for a government fund, despite the family’s objections and without paying compensation.

The Clementes sued under the Lanham Act—the federal trademark law—and the Fifth Amendment. The First Circuit allowed some trademark claims against individual officials to proceed but dismissed the takings claim, holding that the Supreme Court’s categorical—or per se—takings rules don’t apply to “intangible” property. It also held that Puerto Rico enjoys state-like sovereign immunity which the Lanham Act didn’t abrogate.

Now on petition for Supreme Court review, the Manhattan Institute and the Instituto de Libertad Económica para Puerto Rico (the commonwealth’s free-market think tank) have filed an amicus brief supporting the Clementes. We argue that a trademark’s essential property right is the power to exclude unauthorized commercial use. When Puerto Rico placed the Clemente mark on government products, set a price, collected the money, and kept the proceeds, it appropriated that core right rather than merely regulating it.

The First Circuit’s tangible-intangible distinction has no basis in the Fifth Amendment’s text, founding-era understandings, or longstanding precedent protecting franchises, patents, contracts, liens, and other incorporeal rights. It also threatens brands, trade secrets, data, goodwill, and other assets central to the modern economy. Although the brief takes no position on Puerto Rico’s ultimate immunity, it warns that the rulings below could leave owners with property rights that lack remedies when violated. The Court should hear the case and reaffirm that government must pay for what it takes—even when the property can’t be touched physically.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.