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The Commerce Clause to the U.S. Constitution provides that only Congress may regulate interstate commerce and therefore any attempt by a state to regulate commercial activity that affects crossing state lines is unconstitutional.
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A legitimate defense to a claim of trademark violation is that the use of the plaintiff’s mark was within the scope of “fair use,” that is, it was done (1) for noncommercial purposes, (2) the mark is informational rather than creative, (3) the defendant’s use of the mark is substantially different than the original mark used by the plaintiff, and (4) the value of the plaintiff’s mark is not diluted by the defendant’s use of the mark.
