However, the most important part of the [Rescuecom Corp. v. Google, Inc.] opinion was not the decision itself, or its reasoning. Rather, it was the Appendix that the court annexed to its opinion that made the decision extraordinary. As law students, we are all taught that federal courts will not issue advisory opinions. But it is difficult to view the Rescuecom Appendix as anything other than an advisory opinion. And its breadth is rather sweeping. The court embarked on a fairly lengthy discussion of the history and purpose of the “use in commerce” definition. It concluded that it probably was not intended to apply at all to infringement cases— only to registration. The court’s reasoning is not at all illogical. The concept of affixation (or simultaneous display) that underlies the definition has long been connected with the idea of “use” necessary to create trademark rights. And, once there is sufficient connection between interstate commerce and the trademark, the jurisdictional nexus for Congressional regulation seems satisfied. Indeed, there is a tension between the definition of “use in commerce” and the definition of “commerce.” The latter refers to all commerce that can be regulated by Congress, but the former limits the scope to something less than the outer boundaries of Congressional power. Nevertheless, as the court admits, the definition of use in commerce is not by its terms limited to registration. Thus, the court’s analytical approach (which included a discussion of the legislative history of the provision) differs from the literalist, text-only approach used recently by many courts, including the Supreme Court
