First Amendment says: “Congress shall make no law … abridging the freedom of speech.” My question that I still do not understand for the Tam case: How is Tam’s speech being abridged by denial of his registration?
First Amendment says: “Congress shall make no law … abridging the freedom of speech.” My question that I still do not understand for the Tam case: How is Tam’s speech being abridged by denial of his registration?
This is what SCOTUS is for…. to get the last best guess.
That is expressly NOT what the Supreme Court is for.
One of the Trump administration’s very first acts on Monday was to reinstate the Mexico City policy, otherwise known as the global gag rule. The policy prevents giving U.S. funding to international organizations that offer family planning and reproductive health options to women around the world—if those options include talking to women about abortion.
The rightwinger Drumpf supporterers complaining about government “viewpoint discrimination” in trademarks (LOL!) must be going ballistic about this.
Right?
LOL Of course they’re not.
One would think – from reading the comments on this blog that the vast majority of postings have been against Tam, and that the oral arguments spell doom for his efforts.
Yesterday, after reading the commentary and the briefs at Scotusblog’s site ( link to scotusblog.com ), the exact opposite conclusion is the only one that can be drawn.
Except that if you read the comments on this blog you would know all about the ScotusBlog write-up already:
link to patentlyo.com
Opinions differ; mileage varies! Shocking stuff. I’m sticking with my prediction.
Not just that one write-up, Malcolm.
Trying reading what I actually stated before you seek to denigrate.
And as for you sticking to your prediction, I am not shocked in the least. Did you bother contemplating any of the points that go against your prediction? Did you understand them?
Accept no less than total victory gentlemen.
link to thefederalist.com
Maybe the good professor can set up a section of this blog for non-patent “tidbits” for the likes of 6 and Malcolm…
This is trademark. Accept no less than total victory.
Your reply “this is trademark” has nothing to do with your post at 14 and my comment on your post at 14.1.
Sure, this is a trademark thread on a patent blog (the easy link being both are in the IP camp).
You and Malcolm are not discussing anything related to IP though.
Its simple. A trademark registration is a substantive right, similar to a welfare check, a social security check, or the registration of your deed at the county recording office. The government is not obligated to provide any of these things to the public. However, they all have significant monetary value.
Similar Supreme Court Cases:
Rosenberger v. UVA: University cannot withhold funding for a student organization based on it being religious.
Legal Services Corp. v. Velazquez: Congress cannot bar a taxpayer funded free legal services center from serving clients who advocating changing welfare laws.
Agency for Int’l Dev. v. Alliance: Federal funding of AIDS prevention cannot be conditioned on content of advocacy.
Speiser v. Randall: Tax exempt status cannot be conditioned on an oath.
The examples are endless. All government-supporting cases turn on the government being able to show that its standard is viewpoint-neutral. The government has halfheartedly argued that “disparagement” is such, but not convincingly.
There are two camps of people who claim to support “freedom of speech” under the Constitution.
A. Those who uphold the freedom of any speech regardless of content.
B. Those who support the freedom of only certain speech, the content of which they agree with and/or approve of. The simplest example is adopting the view that “good” speech is protected and “bad” speech is not.
Does the Government’s “halfhearted” argument (as you refer to it), rely on an implicit tendency of the Court toward camp B?
A. Those who uphold the freedom of any speech regardless of content.
Which is pretty much nobody, when the rubber hits the road. Yelling “fire!” in a crowded theater and all that.
This is why the basis for speech-limiting law/regulation matters.
“Which is pretty much nobody, when the rubber hits the road. Yelling “fire!” in a crowded theater and all that.”
Would make a great commercial for the line of non sequitur Geico commercials…
But in context here? Rather meaningless.
The “context” is a comment stating there were two camps of people with opinions about the First Amendment. Unfortunately, one of the camps doesn’t actually exist.
Can someone please go to the Star Wars Superfans website and find some better tr0lls? Thanks in advance.
The statement of “Unfortunately, one of the camps doesn’t actually exist.” is not only self-evidently incorrect, it has nothing to do with your “yelling fire in a crowded theater” non-sequitur.
…and your implied comment about the Quinn website once again reveals your rather odd obsess10n with the man.
What is up with that? There is nothing here related to Mr. Quinn or his website, and yet YOUR thoughts are still about him.
implied comment about the Quinn website /i>
Furthest thing from my mind, actually.
But I must say you do some fantastic work protecting him from terrible “enemies” like me. Good boy! Now run back to your mentor and tell him about this. He’ll throw a little “anon”-y snack on the floor for you to munch on. YUM
Furthest thing from your mind?
Really?
Which patent blog do you have on your mind with “someone please go to the Star Wars Superfans website and find some better tr0lls?”
Do tell.
As for “protecting” once again you mistake my knocking you with something else.
You seem to have a really difficult time with the concept that YOU might be doing something amiss.
So very Trump of you.
link to starwars.wikia.com
There’s a few of these out there.
Shocking, I know.
Malcolm – this does not support your post.
There is zero tie to your anti-patent “need better Tr011s” meme
its standard is viewpoint-neutral.
It is viewpoint-neutral.
The government has halfheartedly argued that “disparagement” is such
There’s been no remotely compelling evidence that the standard is not viewpoint neutral. Why would the government need to make more than a half-hearted argument given these facts?
Rosenberger v. UVA: University cannot withhold funding for a student organization based on it being religious
Not the topic being discussed, but this kind of a holding is an unfortunate quirk of America’s historically boundless affection for the worship of a particular flavor of invisible sky daddies, regardless of what the First Amendment says.
…and into the weeds deeply…
“It is viewpoint-neutral.”
Wow – how deep IS your head?
Can you elaborate on how the disparagement test, that a mark is derogatory to a substantial composite of the referenced group, is viewpoint neutral? I do not follow you there.
Can you elaborate on how the disparagement test, that a mark is derogatory to a substantial composite of the referenced group, is viewpoint neutral?
Because “the referenced group” would likewise be denied a registered mark if, e.g., they retaliated by filing a mark that disparaged the applicant in your hypothetical. In other words, everyone’s disparaging trademarks are treated the same. Everyone’s obscene trademarks are treated the same. Everyone’s scandalous trademarks are treated the same. They are all denied registration.
Everyone’s equal here
Of course, some are more equal than others…
We like Asian-Americans!
versus
We like slants!
The first, presumably, would be fine – see, e.g., 86683465 4944718 ASSOCIATION FOR ASIAN AMERICAN STUDIES.
The later would not be (as the assistant S.G. argued).
That means the regulation is content-based (must look to the content to determine whether it survives the regulation; this is all of TM law though) and viewpoint based (the objective understanding of slant is derogatory – it is singled out as a viewpoint (negative) vis a vis a viewpoint that is non-negative (Asian-American).
Therefore, view-point based regulation.
Malcolm is dissembling and wants the “viewpoint” comparison to be one disparagement against another.
He avoids the fact that any disparagement must be “figured out” content wise against similar family type content in order to first determine whether or not is IS considered disparaging.
His lack of ethics or intelligence or inte11ectual honesty or all of these will prevent him from seeing – let alone responding – to your actual point, slaffles.
“Because “the referenced group” would likewise be denied a registered mark if, e.g., they retaliated by filing a mark that disparaged the applicant in your hypothetical. In other words, everyone’s disparaging trademarks are treated the same. Everyone’s obscene trademarks are treated the same. Everyone’s scandalous trademarks are treated the same. They are all denied registration.”
I heard the other day that the Deploraball guy that runs the Deploraball trademarked “Deplorable Nation” or similar. There are many that would find that disparaging, but he got his trademark registered.
There is no group that would retaliate with a mark offensive to Tam, so even taken in the best possible light, your standard fails.
Your standard is merely one of rewarding the most easily offended groups that are currently in vogue with TM examiners.
i.e., Heckler’s Veto.
(Prized by the PC crowds, as long as they – like Malcolm – pretend that the rules do not apply to them)
I really have to wonder just how much of the resistance to the government here is grounded in the symbolic loss it might represent to the Washington Redskins and the “defenders” of “white western Xtian civilization” (aka “the greatest thing that ever happened to the planet”).
Actually I don’t have to wonder about that at all. Nobody does. One thing I can pretty much guarantee, though, is that nobody here was (or is) going to change their “views” about Asian-Americans based on the registration status of this band’s silly name.
…because the Slants are defenders” of “white western Xtian civilization”…
wow
“…because the Slants are defenders” of “white western Xtian civilization”…”
Funny enough, they are in their own round-about way. White western christian hetero cis civilization isn’t only composed entirely of white people. There are vast vast vast numbers of POCs who are entirely 100% white western christian hetero cis civilization in terms of their culture. And there are still more vast numbers of asians, say in S Korea/Japan, and emerging in China and Vietnam etc. that are also white western christian hetero cis civilization with a variety of eastern/asian themes on top. That is precisely why Japan and S Korea are the powerhouses they are.
“, they are in their own round-about way”
In your effort to find some mythological “round-about,” you have veered deeply into the weeds and never do find your way back.
Could you imagine a regime that awarded trademark registrations (or patents) only to Republicans?
That’s actually pretty easy to imagine in light of the fascist tendencies of the modern Republican party.
Next I suppose you’ll ask me if I can imagine a regime where the Federal government actively encourages the suppression of Democratic votes and threatens every form of dissent with litigation, violence and jail.
Trust me when I say that you haven’t seen anything yet.
Ok MM:
Given your responses below I’d like you to honestly address the following hypothetical.
Suppose the Copyright act is amended by Congress to include a provision denying registration of any mark which:
“contains any reference to the Jewish faith, Jewish cuisine, Jewish culture, Jewish people, or anything Jewish in particular, whether promotional, derogatory, or otherwise.”
Now, assuming this provision applies equally to Jewish and non-Jewish persons, Atheists, women, everyone and anyone regardless of religion, race, creed, gender, sexuality, politics, etc. i.e. no one is allowed to register the mark.
IS there anything unconstitutional in such a law? IF so, WHY is it unconstitutional?
IF it is NOT unconstitutional, other than a veto by the President, what would serve to stop such a law from being passed by Congress?
Suppose the Copyright act is amended by Congress to include a provision denying registration of any mark which:
“contains any reference to the Jewish faith, Jewish cuisine, Jewish culture, Jewish people, or anything Jewish in particular, whether promotional, derogatory, or otherwise.”
Suppose you tell me why Congress is doing this in your super awesome hypothetical. Your question might answer itself in that instance. Go ahead and let everyone know why Congress decided not to register a mark that “refers to anything Jewish in particular” (whatever that’s supposed to mean).
Remember: we’re talking about trademarks. We all know that you rightwing faux-libertarian quasi-anarchist types are obsessed with “PC culture” and everywhere you look you see your magnificently fresh white “views” being “oppressed” by the government somehow. Try your best to overcome that and deal with the real world. Good luck. I especially look forward to your joining me in my endless campaign to get the inane and offensive phrase “In God We Trust” off our currency and everything else the government slaps it on.
And by way of reference to the comment you’re responding to (where I quoted another hypothetical far, far away from the facts at issue here), be aware that “denying one political party a Federal trademark registration because … it’s that one political party” is pretty much the furthest thing both from what the statute says and also the facts in the particular case at issue. What can’t be denied is that when the gates are open to Federal registration of disparaging, scandalous and immoral and/or obscene marks, then marks in those categories are going to be registered immediately because the trademark office is, right now, continually being asked to register them.
And, lastly, just in case you’re still intent on missing the entire point here: this case isn’t about “the free expression of ideas” at all. It’s about the Federal registration of trademarks, marks whose only purpose for existence is to minimize consumer confusion about the source of goods and services. There is no discrimination against “views”. There is only a prohibition against Federal registration of an *insult*. You can’t seriously be concerned about “free expression” and simultaneously be whining and stamping your feet non-stop — as you do — that we need to put the right to control information into private hands using the IP system. That’s absurd, and you’re absurd.
LOL! ok now… such anger for so simple an example.
Reading between the lines of your XX, your answer is that it would NOT be unconstitutional and that as long as Congress decided to enact it nothing would stop it from becoming the Law of the land (other than a veto by the president)?
ok now… such anger
I’m not angry at all. The bolding at the end was because the formatting tag didn’t get closed. Apologies.
your answer is that it would NOT be unconstitutional
LOL. No, that is not my answer. My answer is that if you can’t even be bothered to give me a rational basis for your silly hypothetical law, it’s a waste of time to address the First Amendment issues.
Your internal inconsistency is noted.
Noted…?
It’s one of his trademarks.
(of course, his number one trademark is Accuse Others Of That Which Malcolm Does – which should surprise no one)
“We all know that you rightwing faux-libertarian quasi-anarchist types are obsessed with “PC culture””
That “we” is anyone outside of Malcolm’s “one bucket” mentality, which basically means Malcolm, Scooby Don’t and the multitude of sockpuppets (and any other mindless PC sheep out there).
So much for the notion of diversity – very animal farm in the “diversity” allowed in the PC ranks.
So much for the notion of diversity
I would love to seem some real diversity. Unfortunately there isn’t a whole lot of that on the patent maximalist side. It’s 95% (at least) rich white guys whining about subject matter eligibility. And most of the loudest (and wrongest) whiners are Republican/faux-libertarian types.
What’s funny is that anyone would find this correlation the least bit surprising.
Your feelings are noted.
“I would love to seem some real diversity. Unfortunately there isn’t a whole lot of that on the patent maximalist side. It’s 95% (at least) rich white guys whining about subject matter eligibility.”
With all the influx of asian applicants these days I’m curious why there aren’t hordes of asian dudes that are also included in your analysis? Do they just never speak out? Or are they not on the “patent maximalization” side?
That just doesn’t fit his script.
” we’re talking about trademarks. We all know that you rightwing faux-libertarian quasi-anarchist types ”
Lol wut? Who is a rightwing faux-liberatarian quasi-anarchist?
” and everywhere you look you see your magnificently fresh white “views” being “oppressed” by the government somehow.”
Who says that “white ‘views'” are being “oppressed” by the gubmit?
You’re a clueless old boomer that can’t even understand the culture that underlies the whole discussion. Much less can you understand the arguments going on right now.
In reality, all the trademark grant would do is permit TAM to block others from exercising their freedom of speech.
Yet another who does not understand how a trademark would actually be enforced…
Yet another who does not understand how a trademark would actually be enforced…
And you were already schooled on this topic with a recent real world example. You’re coming back for me? At least wait for the slapmark to disappear.
Lol – your “legend in your own mind” is noted.
Dennis:
I think the chilling effect on the marketplace of ideas makes it first amendment “speech” – discourages one type of speech over another by offering government benefit to one and not another.
The real questions: Is this a limited public forum or a classic public forum (and how to square that with the governmental programs cases). I think clearly, it is limited public forum/ governmental programs. Tam’s lawyer’s unwillingness to concede that TM law is not classic public forum was, IMO, a mistake.
I understand if someone wants to argue that it is not “content neutral” – but the entirety of trademark law is content based. So that doesnt really help.
Since we are in a weird section of 1st amendment law (close to libel/slander/ etc) the test should be whether the law serves property’s purpose. (Property in this case being the government program).
Here is where the Government’s lawyer tried to argue that Congress decided that marketplace identification works best with positive (instead of negative) trademarks.
We’ll see I guess. Neither side really convinced me though.
I also feel like the Justices were really skeptical of strong 1st amendment protections for this speech or, better stated, this case must be decided carefully if they agree with the CAFC because a broad holding may upset economic regulations that have, historically, been completely fine, see, e.g., the credit card charges case currently pending as well (although that case has a far more serious capability of causing issues with economic regulations).
I think the chilling effect on the marketplace of ideas makes it first amendment “speech”
Except that there is no “chilling effect on the marketplace of ideas” when you deny registration of a Federal trademark. None. Nada. Zero.
On the contrary, the “chilling effect” occurs when the mark is registered and now anyone who uses the disparaging term has to worry about sued for being trademark infringement.
Do you have any other arguments? Because the one you just made is d.o.a.
As an admittedly extreme example, suppose the government could deny you police protection for your speech. You could still say whatever you want, but the government would clearly be against that type of speech. Would that type of law pass muster?
suppose the government could deny you police protection for your speech
I’m not sure what means. The police don’t protect my speech. They protect *me* from being harmed by criminals (in theory, anyway).
On what rational basis is the government legally denying “me” (as opposed to someone else) this “protection”?
[S]uppose the government could deny you police protection for your speech… Would that type of law pass muster?
I do not have a case to cite, but I feel fairly certain that would not be constitutional. That is a very different set of facts than here, however. If the police will not close the roads for your parade, for example, then the parade will not happen. You really are being denied an ability to speak.
By contrast, if Tam’s mark is not registered, he can (he already does) still use the mark in commerce. No speech is actually stopped, either in theory or practice.
As pointed out previously, you are ig noring the chilling effect vis a vis the selective (and that selectivity directly bearing on government content-specific choice) awarding of legal and financial protections.
I do wonder why you try so hard to ig nore these points. Are you that PC-blinded?
Tam’s lawyer’s unwillingness to concede that TM law is not classic public forum was, IMO, a mistake.
Except that the entire theory of Tam’s case rests on that proposition. Tam insists that the First Amendment entitles him to Federal registration of any trademark he dreams up.
Either the government can decide that it won’t register your “Trump is a Ment@lly Ill Sociop@th Pile of Sh-t” because it’s disparaging and obscene and the marketplace (of THINGS and SERVICES, mind you, not “ideas”) is better without that, or the government can’t make that decision because boo hoo hoo hoo we need Federal support of disparagement and filth at every microlevel of government because there’s not enough out there already.
Tam’s lawyer’s unwillingness to concede that TM law is not classic public forum was, IMO, a mistake.
Hm, I do not think that this is a fair characterization of Connell’s remarks. Justice Kennedy suggested that TM registration should be viewed as just like a public park, and Connell agreed. Then Justice Kagan pointed out all of the ways that TM registration could not possibly be treated like a public park, and Connell also agreed. That seems to me a “conce[ssion] that TM law is not [a] classic public forum.” He did not rush to make that concession, but he made it all the same when pressed.
Connell agreed with Kennedy’s characterization of Connell’s position. And then he didn’t.
Probably it’s best if you make up your mind ahead of time about what points you’re willing to concede. I think Kennedy’s point was predictable and I think Connell had his answer prepared.
How is Tam’s speech being abridged by denial of his registration?
It’s not.
As the Supremes recognized, trademarks are not “speech” and they were never intended to be used as vehicles to promote speech. The purpose of marks is to avoid consumer confusion. It is, in fact, the granting of invalid marks which has a far more chilling effect on free speech.
Secondly, Tam is perfectly free to call his band The Slants, he’s perfectly free to talk all he wants about The Slants and he’s perfectly free to collect the data that will never exist which shows that he’s “taken back” the anti-Asian slur “slant eyes”.
I think it is often forgotten that government provided benefits have had their battles with the First Amendment before (probably what Anon was referring to in the comment to take a first amendment teacher out for coffee and pizza). To me, there are significant benefits to being registered on the Federal Registry, such as nationwide notice and prima facie evidence of incontestability to avoid litigation and make protection cheaper against infringement. It is likely these benefits are the reason why, as Tam has pointed out, record labels refuse to deal with bands that do not protect their brand with federal trademark protection. The Court has previously stated in Speiser v. Randall that “to deny [a benefit to those] who engage in certain forms of speech is in effect to penalize them for such speech” concluding that its deterrent effect on the speech was like a fine. In Simon & Schuster, the Court thought a statute was inconsistent with the First Amendment if it imposes a financial burden on speakers according to the content of their speech. The Court’s rational was “the governments ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas and viewpoints from the marketplace.” Although these cases are not directly on point, they form the backbone that when the government confers a benefit on certain types of speech as opposed to others that imbalance may impinge the First Amendment. As Anon2 pointed out in the example, the government through its disparaging content sword is driving certain ideas and viewpoints from the marketplace because non-federal trademark protection doesn’t cut it in the modern globalized business world. If non-federal protection was adequate, why would cost sensitive and saavy businesses not rely on these cheaper protections? I mean c’mon…just look at the growth of federal trademark applications from about 100,000 in the early 90s to around 400,000 today; clearly there are substantial benefits to the federal program.
record labels refuse to deal with bands that do not protect their brand with federal trademark protection
As stated, this is a complete lie. Most records that are released by bands are associated with a record label. I would estimate that less than 1% of those bandnames are registered trademarks. I wouldn’t be surprised if the actual number is less than 0.1%.
There is a big difference between a great band that is releasing some music, on one hand, and a talentless attention-craving PR stunt man like Tam whose music is the sonic equivalent of broken glass-encrusted t0ilet paper.
Why would that be a complete lie? You think a record label who signs an up and coming band known for its name wants another band hijacking the brand recognition and goodwill? There is a whole trademark international class dedicated to entertainment that contains thousands of bands. A pretty simple USPTO trademark search confirms that.
Why would that be a complete lie?
Because it’s false, as I just explained to you.
You think a record label who signs an up and coming band known for its name wants another band hijacking the brand recognition and goodwill
No, but there’s other legal ways to prevent that from happening without Federal registration including … trademark law. The bigger point, however, is that record labels release records by bands all the time — every day! — without giving any thought whatsover to Federal trademark registration. And the world continues to turn and the label and the band is perfectly happy.
There is a whole trademark international class dedicated to entertainment that contains thousands of bands.
That’s nice. I never suggested otherwise. Also it doesn’t change the fact that you’re earlier statement was false, as I already explained.
Also, most record labels don’t have registered Federal trademarks in their names.