Of the briefs filed in Lee v. Tam, the most entertaining is the Libertarian Cato Institute brief filed by my classmate Ilya Shapiro. The official caption:
BRIEF OF THE CATO INSTITUTE AND A BASKET OF DEPLORABLE PEOPLE AND ORGANIZATIONS AS AMICI CURIAE SUPPORTING RESPONDENT
Cato Brief. Shapiro also rewrites the question presented: “Does the government get to decide what’s a slur?” Cato’s core argument:
Trying to stamp out “disparaging” speech is both misguided and unconstitutional. No public official can be trusted to neutrally identify speech that “disparages.”
With that in mind, the case provides dozens of examples making its point.
In the case, the Department of Justice and USPTO are appealing the Federal Circuit’s determination that the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a) is facially invalid as in conflict with the Free Speech Clause of the First Amendment of the US Constitution. The provision at issue provides for the PTO’s refusal to register marks that consist of “matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Mr. Tam’s band name – THE SLANTS – was refused under this provision.
Before you read, beware that the Cato brief does include offensive and disparaging remarks. Read the: Cato Brief.
= = = = =
On ScotusBlog, Prof Tushnet expands on her recent N.D. Law Review Article and explains that “There is no neutral, non-speech-suppressing choice when it comes to trademark registration, and the Federal Circuit’s failure to recognize this fact distorted its analysis in fundamental ways.” While the Federal Circuit aptly explained how the disparaging provision was a limitation on speech, it did not consider how granting TM rights also limit speech (government granted and enforced right to silence speech of others). Although bold, the Cato brief lacks some amount of nuance and fails to consider this point.
6,
The newest thread with modern nativity has a Chicago Tribune story that you might enjoy.
It probably makes more sense to post the link here, but meh, you can get it there and comment here.
Because you can’t make this stuff up:
6: In order for it to be a “nice” life that would involve … according to … me… a fairly decent shot at being successfully married to someone not literally state-media-propaganda-complex mind controlled against you and into having fcked themselves (and you) over
Sounds like someone got burned a few times. Or maybe more than a few times. Gee, I wonder what possibly could have happened? Oh well. Eventually 6 will find that girl of his dreams, the one who — just like 6 — has overcome all that terrible media propaganda and who understands that being cr@zy and u gly is just one of those things that all women and a few u gly, cr@zy guys have to deal with.
“Sounds like someone got burned a few times. Or maybe more than a few times.”
Um you’re gd right I’ve been “burned”, and “burned” people beyond times to count. And it isn’t just me. Not by a long shot. The whole generation of young people society has been burned. By you stu pid fcking boomers. And we know it.
“Gee, I wonder what possibly could have happened?”
You boomer fcks are what happened.
“Eventually 6 will find that girl of his dreams, the one who — just like 6 — has overcome all that terrible media propaganda and who understands that being cr@zy and u gly is just one of those things that all women and a few u gly, cr@zy guys have to deal with.”
Ugliness? Craziness? W t f are you talking about you ignorant out of touch boomer fck?
Remember when s00per serious Trump supporter Ned Heller said we that we should wait and see whether Trump would drain the swamp?
I do. And now this:
“Drain the swamp” was a refrain of Donald Tr mp during the presidential campaign, but Newt Gingrich says the president-elect “doesn’t want to use it anymore” now that he’s knee-deep in alligators. “I’m told he now just disclaims that.”
Sh0ckers! It’s so hard to predict what happens when a TV celebrity running as a Republican surrounds himself with incompetents whose primary goal is the destruction of every institution and social safety net that can be plundered (except for the military of course). Thank goodness we have brave protesters like “anon” to protect us all with their Bernie Sanders write-ins. Truly devastating stuff.
Not sure why you want to throw the cheap shot at me with your Trump whining.
If we (and yes, that would be the gen eral public) had Hilary, we would be knee deep in Donkey CRP now.
You confuse your wanting to be knee deep in Donkey CRP and my not wanting either Donkey CRP or Elephant CRP with somehow an indictment about there being Elephant CRP.
There is ZERO logic in your contortions.
Donkey CRP
Translation: women, minorities, competent educated people, scientists, maybe even a Muslim or two … Oh noes! Get the smelling salts, Grandma! They’re coming from the guns again!
Yes, “anon” is very “independent”! He h@tes everybody except that beautiful creature in the mirror which only he can understand. He’s a s00per deep and s00per serious person! And brave, too. He protested by writtng in Bernie! Very serious stuff.
Meanwhile:
[The First Amendment Defense Act] … aims to protect the right of all entities to refuse service to LGBTQ people based on two sets of beliefs: “(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”
But don’t worry all you millions of folks who don’t belong to Ted Cruz’ w@cky religion! The real problem is “neopuritanism.” Sure it is! After all, “anon’s” bff 6 told us so. And he’s very, very, very hip and serious. It’s all over the Internets!
“Translation: women, minorities, competent educated people, scientists, maybe even a Muslim or two … Oh noes! ”
That’s not even close to an accurate translation.
You need to pay better attention son.
“After all, “anon’s” bff 6 told us so.”
There you go again with your “one bucket” mentality.
Man, that’s down right pa thet ic.
You guys are both sitting proudly at the bottom of the “PC is the w0rst thing ever” bucket and it’s quite plain that your shared belief is rooted in a shared lack of emotional maturity. You both pretty much stopped evolving at around age 12, it would seem. Gosh knows what happened but take comfort: you’re not alone! Their are lots of grown up Star Wars superfan deep thinkers just like you: link to balloon-juice.com
You are the one classifying this as some sort of “worst thing ever.”
Much like you classified multiple pseudonyms – and we both know who has had more (tons more) of those in the last five years… (Rut Row)
As for PC itself, it is (self-evidently) pure CRP,
“PC is the w0rst thing ever”
I never said that it is the worst thing ever. Obviously there are worse things. It is only the “worst thing” in modern times for WHYTE/MALE/CHRISTIAN/etc in people as a group in the WEST. As that is when it has been in effect, and that is who it targets and mostly affects.
6: PC is… the “worst thing” in modern times for WHYTE/MALE/CHRISTIAN/etc in people as a group in the WEST
Wow. Sounds like a nice life.
that is who it targets
LOL. Remind everyone: what is “it” exactly? And what are the awful consequences for these viciously oppressed “targets”? Other than the better opportunities and higher incomes, of course.
Tell everyone, 6! You’re a s00per serious person and you’re hip to all these fresh insights into “PC”. Feel free to phone “anon” if you need help.
“Wow. Sounds like a nice life.”
I will admit, or rather say straight out, that it isn’t horrendous. But it definitely isn’t what I would call overall a “nice” life. In order for it to be a “nice” life that would involve, according to wiser people than me I would think (and me as well!), a fairly decent shot at being successfully married to someone not literally state-media-propaganda-complex mind controlled against you and into having fcked themselves (and you) over, and producing some childrens and whatever else normal normal things. Oh and hopefully not getting divorced (let’s not even talk about alimony etc).
But, therein lies the “evil” of relativism. You can say on the one hand “well you live as a king of old in the modern day”, and you’d be undeniably right in large part. But then, so do people making 13,000 a year, compared to the kings in the 14th century. But those people then get “muh victim” special status (as long as they’re not white, or mail), even though those same people may well have hit the jackpot in terms of different aspects of life. Meanwhile, your everyday avg whyte/mail/etc. just has to deal with the fallout of a sick society making a truly “nice” life all but impossible to create for vast swaths of their populace, for literally no purpose (other than perhaps to get some lefties in office, where they will promptly go corporatist anyway).
“Remind everyone: what is “it” exactly?”
Um, that would be the subject of your previous post, PCness and PC culture. duh?
” And what are the awful consequences for these viciously oppressed “targets”? ”
I just told you a whole laundry list of consequences down below, to which you have chosen to not respond, and there are many hundreds more. The capstone is of course severe distortions in what is known in sociology literature as the “sexual market” or “marriage market” and the effects thereof on the lives of people (not only mails, not only whyte mails, but also POCs and the POC women and non-POC women that would be joining with those mails). The effects on lives as a result of these distortions include but are not limited to: lower fam wealth creation, lower fam creation, lower fertility, lower quality of children raised, lower educational attainment by children, higher crime rates than would otherwise be, higher rates of single motherhood, higher poverty rates, higher rates of risky behavior. And with these effects necessarily comes more gubmit intervention to “fix” these totally “new” and totally “unforeseen” problems they created. And yes, all of this is from your “muh lefty rag” sources as well as right wing sources. The difference between the sources is that one (the lefties) see all this as unstoppable (because they themselves are pushing it and want it, so they advocate dealing with the fallout via gubmit power), and the right wing sees it as easily stoppable (stop lefties and end their ideology, go traditionalist, or at least moreso traditionalist).
“you’re hip to all these fresh insights into “PC””
I wouldn’t say they’re fresh all that much. Most of them are just now being compiled from leftie, indie and rightie sources by my generation into one overarching whole. The “old guard” right first identified (and thus got naming rights for) most of the phenomena emerging from the left and indeed railed against near each subject on its own. Of course they were ignored because they were busy losing the culture war because they were too far to the right and not moderate enough. My generation is having to bring it all together to explain w t f is going on in the disaster zone that is the modern sexual marketplace.
“Go back to wherever the f*** you come from, lady,” the angry woman says in the video, which has been viewed millions of times online. “Just because you come from another country, that don’t make you nobody. You’re nobody, as far as I’m concerned. Probably on welfare. The taxpayers probably paid for all that stuff.” …
Mall officials wants to find out who the woman is, so they can ban her.
6’s mommy felt super emp0wered! But where was 6 to defend this superior woman’s freedom? Probably helping “anon” cut holes in pillowcases for their next club meeting. Ah, well.
Your (wayward) feelings are noted.
MM, the America Party, “lead” by Millard Fillmore, almost won enough states to throw the election of ’56 into the House.
Their platform, anti-immigration.
But note where your precious Democrat Party gained its support…
link to 270towin.com
That’s actually interesting Ned.
MM’s media posts something to really tug at MM’s “muh feelings” with a totally not nice old lady upset at one of his “muh victims”. MM comes to PO to exclaim his heartache for his “muh victim” and to socially castigate those that will not stand politically against hurting his “muh victims” thereby having caused him heartache.
Whew. What business is it of mine if this lady gets pi ss ed at some immigrant (and their special muh victim status granted them by the left)? I don’t care if they ban her or not. She was violating on their decorum of their private property.
Hah, checked the article.
link to crossroadstoday.com
Lol it’s supposedly “racially charged”, though race isn’t even mentioned. Such lefty nonsense. Here’s the entirely cu cked lefty mayor:
“I am sad and disappointed to see conduct like this, when one person so dehumanizes another human being,” Louisville Mayor Greg Fischer said in a statement to CNN affiliate WDRB. “This is not who we are, and on behalf of our community, I apologize to the two women who were treated in such a horrible way. I hope this video prompts many discussions among families as they gather for the holidays this week — discussions about basic human values, dignity and respect. As a country of immigrants, we must understand that we only move forward through peace, acceptance and embracing those who are different from us. These are basic American values protected in our Constitution, values embraced in this welcoming, compassionate community.”
Except you know, she didn’t say anything about the 2 line skippers being “not human”. Whoops #leftymindcontrolmistakes . And you know, the constitution didn’t say squat about line skipping, or immigration being a “right”. But it did grant the lady in question certain rights, which MM is quick to point out.
“when one person so dehumanizes another human being,”
Sort of like Malcolm’s (daily) swagger, aimed at anyone who does not feel like Malcolm feels….
Oops.
Lol while MM is busy “progressing” his party has “progressed” beyond peaceful gathering!
link to observer.com
MM, I am still hoping he ends corruption — the people who sell American interests out for a few dollars more. Play for pay.
You never believed he was serious. I hoped and still hope that he was.
In general (a pun?), what do you think of is Cabinet appointments?
“what do you think of is Cabinet appointments?”
Also pure CRP Ned.
I am still hoping he ends corruption — the people who sell American interests out for a few dollars more.
In the past I would have assumed that an alleged attorney would have to be j0king to utter something as naive as this.
“America” and everything it touches is being flushed down the t0 ilet right in front of our eyes, Ned. Your Republikkkan party just sold itself out to Russia, of all countries. Absent some unforseen “tragedy” (maybe a plane crash that takes out Trump, Pence and everyone in his cabinet) we can begin to put a fork in the USA and everything it stood for. Just say yes to fascism and corruption the likes of which we’ve never seen before. But look on the bright side: you’ll be able to high five 6 without shame as you insult women and minorities! Yay! Yay!
MM, we didn’t get into WWI to save democracy. We didn’t get into WWII to fight fascism. We did however invade Iraq because Saddam was a bad guy that had to go. We did however invade Libya because Qaddafi was a bad guy and had to go. We did however get directly involve in Syria because Assad was a bad guy and had to go. The hyperactive interventions/war mongers are painting Putin as a bad guy who has to go. Where is that going to lead us, MM?
To war.
That is where it is going to lead us.
From the big picture, look at the world. The US and China are the most powerful countries in the world. The Euros are fragmented and for that reason are not a threat. Russia could be an enemy or a friend, depending. We need them as a friend.
We need to trash interventionism. We cannot make the world a better place by intervening everywhere against bad guys. Experience has show us the exact opposite, but at great cost to the treasury and to the lives of Americans.
The hyperactive interventions/war mongers are painting Putin as a bad guy who has to go… We need to trash interventionism. We cannot make the world a better place by intervening everywhere against bad guys.
Well said. I have no love for Mr. Putin, but I will sleep more easily at night if we find a way to make our peace with him. No good will come of picking a fight with Russia, even if we win in the end.
Incidentally, that is also true for China. No good will come of picking a fight with them, either.
Agreed, Greg.
But a friendship with Russia will tend to be an anchor against Chinese aggression just like Nixon’s rapprochement with China bore immediate fruit in Vietnam.
Agreed.
I’m ok with trying to play friends with Russia where we can, but not sure how yesterday’s tweet to expand and strengthen nuclear capabilities is going to help. I could barely sleep last night because of that. President-elect is so careless!
Pop-quiz: Is it possible to get country A, which you’re sanctioning, to agree to sanction another country (country B) with you, mainly by appealing to (at best) a competitor, Country C, to encourage Country A to go along? See below for the answer.
Yes, if you are President Obama, and country A is Russia, Country B is Iran, and Country C is China.
J, methinks that we are going to lift sanctions on Russia.
As to nukes, they keep the peace. Strengthening US nuclear weapons protects the US, not the other way around.
Ned, that is a M.A.D. idea.
😉
Strongly disagree. We already have enough weapon power to blow up the entire world several times over. Any more nukes would be both a waste of our own resources and an unnecessary provocation to others.
Greg, the stuff we have is old an unreliable. I actually helped design them (Minuteman III) when I first got out of school, so I know what I am talking about. Systems that old need to be replaced and upgraded.
This is not simply adding to a stockpile.
The President-elect didn’t say we need to modernize, which our current President has done. He wants to increase the stock pile. That’s an escalation!
Of course we are going to lift the sanctions on Russia, and likely get nothing in return. Sad
The s00per deep “anon” is confused:
Please explain how you think that “having the money” but NOT the win at trial that you can shut down others.
Silly “anon.” If you have the money and the mark, you don’t need to go to trial to succeed with shutting down your target, particularly when you’re target has far less money. But you knew that already. Every lawyer knows how the game is played. But only a certain kind of lawyer (i.e., the kind represented by you and your c0horts) enjoys pretending otherwise.
Also this: Last year, Donald Trump’s presidential campaign threatened the website StopTrump.us, which sold t-shirts and other merchandise protesting and satirizing Trump, with a lawsuit for allegedly infringing the federally registered TRUMP trademark.
Nobody could have predicted!
You managed to say nothing, Malcolm. Come man, spit it out (and address what I actually said):
Please explain how you think that “having the money” but NOT the win at trial that you can shut down others.
If you lose at trial, you are not “shutting down” anyone.
If you lose at trial, you are not “shutting down” anyone.
If you drown at sea, you are not breathing air. Deep stuff, folks! When you can’t rebut an argument, play the “anon” game: beat on a strawman like you were born yesterday! It’s s00per convincing … to people who were born yesterday! Which is so awesome because, hey, just smell those diapers. Yum.
“anon”: address what I actually said
Says the clinical narcissist who habitually spews out so much mindless sideshow drivel that it’s almost impossible to keep up. Fun games! Works great at his ment0r’s blog. Not so well here.
anon he’s saying people don’t have money to go to trial idi to.
I know what he is saying, 6. The problem is he is disregarding what I am saying, and then commenting on something else.
And then turns around (after his own mistake), and indulges himself with empty ad hominem.
“anon” he is disregarding what I am saying
You’re strawman b.s. was spewed in response to me you unbelievably p@thetic and habitually dissembling narcissist t 0 0l.
Yet more empty ad hominem that has nothing to do with the actual discussion points.
Somehow you still fail to recognize what I actually stated (confusing for some odd reason to whom I made a statement to).
Maybe try to not let your feelings run your rants and focus more on the content of what is actually being said…
(It will help with your apparent problem of “keeping up” AND cut down on the false ad hominem – wouldn’t that be swell for the “ecosystem” here – or does the moderator not really care about that…? 😉 )
May be other ways for that portion of the statute to go down, but I agree with Professor Tushnet’s views on the first amendment.
Failure to grant someone the exclusionary rights attendant to federal registration in their mark is not equivalent to censoring their ability to speak or otherwise use the words in the mark.
I’m thinking at least 6 on the Court (perhaps all 8) get this point.
Guess we’ll see.
Agreed.
Business speech is still protected under the First Amendment.
“Business speech is still protected”
Price?
Tea?
China?
No one is threatening to stop the speech or control it.
? Except that is exactly what is happening – control of the determination of what is “disparaging” – content control.
The word you may want to remind yourself of for such matters: “chilling.”
Where, as here, the context is business speech, the chilling is also in that context.
the context is business speech, the chilling is also in that context.
Oh noes! What a terrific loss!
Your feelings are noted.
Maybe now you may want to take a closer look at the legal issue under discussion.
The brilliant and deep thinking Ted Cruz (Republikkkan) brings us this:
[The First Amendment Defense Act] … aims to protect the right of all entities to refuse service to LGBTQ people based on two sets of beliefs: “(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”
LOLOLOLOLOLOLOLOLOLOLOL
And Trump will sign because, heck, why not?
Freed um! Smell it.
We now return you to “anon”s handwringing about the horrific “chilling” effect of denying a business a trademark to term “Get out of my store, you infidel c*nt.”
Yay PC content rant without even being aware of the PC which would shut down his own rants!
Sorry for the long hiatus.
Sure, whether the government should be in the business of deciding what is or is not disparaging is a question to be answered.
But I still don’t get the histrionics* I’ve seen about how failing to grant registration is in some way “chilling” in such a fashion as to implicate free speech/censorship concerns.
Keep on using your mark, along with whatever common law rights attach to that use. How is free speech being “chilled”?
* from some quarters; not implicating your comment above.
Do we really need political comments on this board? Such as 6’s incredibly long, single-paragraph tirade below?
MM asked.
I guess I don’t get it. This is a board ostensibly about patent (or IP) law, and there’s really no place for politics. And that goes especially for MM, since he’s (or she’s or it’s — I tend to think it’s a Google AI program) the instigator.
I come here to see discussion of IP law, and I don’t want to see politics. If I wanted to see politics, I could turn on the TV or read the news.
Every time I come here to get comments about IP law, I find myself wading through 90+% off topic or political or useless comments to get to a few nuggets of useful comments. I’m constantly asking myself if it’s worth it, and I don’t think it is.
B-b-but the ecosystem…!
😉
“This is a board ostensibly about patent (or IP) law, and there’s really no place for politics.”
You may have noticed that the case before the trademark people right now is more than tangentially related to the overall political situation. The reason Tam is all of a sudden out of the blue challenging this (long held iirc) rule against disparagement is because of the new culture war against the fraking boomers and their id iotic neopuritanism (which not coincidentally led to the Redskins trademark kerfuffle which pre-saged this case). It didn’t just magically happen that this case arose during this particular time period. Even the “muh victims” (here some asian dudes) themselves tire of the neopuritanism of the boomers and by extension the hyper-enforcement in the gov. In ordinary circumstances (read pre-2005ish) nobody really has a problem with trademarks not being disparaging because the rule wasn’t applied absurdly and nobody much was hip to what was happening with neo-puritanism. It is only now, in today’s culture that this even becomes even the smallest bit of an issue. Bottom line, the “conservatives” lost last time because they weren’t moderate enough. Now it’s the “progressives” turn to lose as well because they aren’t moderate enough.
WE WILL WIN THROUGH! (Even if we have to wait on every last boomer to die)
What is neo-puritanism?
link to americanthinker.com
“MM, since he’s (or she’s or it’s — I tend to think it’s a Google AI program) ”
MM is an old, out of touch, rich, overly privileged to the point that it literally hurts him (causes actual “pain” because of his “muh feels”) white dude who exists irl. He’s a huge fan of feeling morally superior in his whittle heart, indeed if he isn’t in his own mind morally superior then in his mind his life would be literally without meaning and he himself literally would be part of the “problem” which he continuously finds with the world. He is “the one who knocks” when it comes to demanding apologies and apologetics for being white/male etc.
link to youtube.com
“Every time I come here to get comments about IP law, I find myself wading through 90+% off topic or political or useless comments to get to a few nuggets of useful comments. I’m constantly asking myself if it’s worth it, and I don’t think it is.”
You’re probably right. But there is plenty of comments on the “law” in this thread. Spoiler alert, the “law” involves this new thing called the culture surrounding it, like always.
neopuritanism
LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL
See?
the new culture war against the fraking boomers
LOLOLOLOLOLOLOLOLOLOLOLOL
I guess if your’e 12 years old and you get your fake news from neon@zi Internet tabloids then everything seems new. Or “neo”.
LOLOLOLOLOLOL
“neon@zi Internet tabloids”
It’s all over your interbuts old man, not simply “neo-nazilol” “tabloids”. Why not step out of your ivory tower and into the real world? Too scary out there with real people? Are the evil RAYCYST WHYTE MAILS OPPRESSIN ON YOU?
He pretty much oppresses himself all the time (the source of his cognitive dissonance).
It’s all over your interbuts
step …into the real world
LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL
How’s m0mmys basement looking these days, 6? Does that Emma Watson poster still wink at you while you perform your wrist exercises?
That’s a good attempt at projecting (no doubt as you do your own wrist exercises in your own mommy’ basement in front of your Gene Quinn poster).
“How’s m0mmys basement looking these days, 6? Does that Emma Watson poster still wink at you while you perform your wrist exercises?”
Meanwhile back on planet earth an actual exchange between me and the POC I’m about to “oppress” in a couple hours.
6 Will try to get you around 9
POC Sorry for the late response back that will work with me
6 I’ll be there around 9, don’t be smoky (she smokes).
POC I won’t hun
POC I’ll be ready for you
Bonus just for you MM, I’ll make her say stuff that offends you.
Broadly speaking, Bob, I agree with you. Most threads would be none the worse (perhaps considerably improved) if ~50% of comments were removed as off topic.
This particular thread, however, is about disparaging trademarks, which necessarily implicates discussions of so-called “political correctness,” which—in turn—necessarily involves discussion of politics.
In other words, your point would be well taken in most threads, but in this thread the complaint is probably unjustified.