Lee v. Tam and A Basket of Deplorable People

something-slanted-this-way-comes-album-cover1Of 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.

 

231 thoughts on “Lee v. Tam and A Basket of Deplorable People

  1. 16

    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.

  2. 15

    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.

    1. 15.1

      “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?

  3. 14

    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.

    1. 14.1

      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.

      1. 14.1.1

        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!

        1. 14.1.1.1

          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.

        2. 14.1.1.2

          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.

          1. 14.1.1.2.1

            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

            1. 14.1.1.2.1.1

              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,

            2. 14.1.1.2.1.2

              “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.

              1. 14.1.1.2.1.2.1

                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.

                1. “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.

              2. 14.1.1.2.1.2.2

                “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.

                1. 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

                2. 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.

                3. 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.

                4. 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.

    2. 14.3

      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?

      1. 14.3.2

        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!

        1. 14.3.2.1

          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.

          1. 14.3.2.1.1

            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.

            1. 14.3.2.1.1.1

              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.

            2. 14.3.2.1.1.2

              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.

              1. 14.3.2.1.1.2.1

                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.

                1. 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.

                2. 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.

              2. 14.3.2.1.1.2.2

                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

  4. 13

    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!

    1. 13.1

      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.

      1. 13.1.1

        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.

      2. 13.1.2

        “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.

        1. 13.1.3.1

          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.

          1. 13.1.3.1.1

            “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.

            1. 13.1.3.1.1.1

              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…

              1. 13.1.3.1.1.1.1

                (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…? ;-) )

  5. 12

    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.

      1. 12.2.1

        “Business speech is still protected”

        Price?

        Tea?

        China?

        No one is threatening to stop the speech or control it.

        1. 12.2.1.1

          ? Except that is exactly what is happening – control of the determination of what is “disparaging” – content control.

          1. 12.2.1.1.1

            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.

            1. 12.2.1.1.1.1

              the context is business speech, the chilling is also in that context.

              Oh noes! What a terrific loss!

              1. 12.2.1.1.1.1.1

                Your feelings are noted.

                Maybe now you may want to take a closer look at the legal issue under discussion.

            2. 12.2.1.1.1.2

              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.”

          2. 12.2.1.1.2

            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.

  6. 11

    Do we really need political comments on this board? Such as 6’s incredibly long, single-paragraph tirade below?

      1. 11.1.1

        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.

        1. 11.1.1.2

          “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.

          1. 11.1.1.2.2

            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

            1. 11.1.1.2.2.1

              “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?

              1. 11.1.1.2.2.1.2

                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?

                1. 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).

                2. “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

        2. 11.1.1.3

          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.

          1. 11.1.1.3.1

            Most threads would be none the worse (perhaps considerably improved) if ~50% of comments were removed as off topic.

            As I have previously suggested – to clean up the “ecosystem,” the typically off-topic rants can be shunted to one of the (non-used) other pages of the blog.

            Of course, were that to happen, the shear repetition of the same tired and trite scripts of certain posters like Malcolm would be all the more mad evident.

            Sort of like what happened back in the days of this Blog’s DISQUS experiment – that is, until Malcolm (and a few select similar echoes) upped their privacy settings to the max so that such co-location of comments was not visible.

            If this blog really wanted to “clean up,” it would have done so long ago.

  7. 10

    Further, the disparagement clause is unconstitutionally vague. Its application will always be unpredictable, because nearly any brand could be taken as disparaging by some portion of some group.

    I have seen this argument before…

    ;-)

  8. 9

    Powerful, devastating. PJ briefs the SCOTUS and rips the PC to shreds. This must be marking the high water point for PC. Hey PJ ‘give war a chance’ and cut us deplorables some slack.

  9. 8

    Would it make any difference if the decision about whether a mark was disparaging was made by a jury?

    1. 8.1

      In other words, before a mark could be cancelled, it must have been held to be disparaging in a court of law and by a jury.

        1. 8.1.1.1

          anon, disparagement is a common law tort, aka, trade libel. Like all slander and libel, the issue of whether what was said or written tended to disparage was and is a factual issue for the jury.

          In other words, this is the kind of issue reserved for juries at common law and for which the Constitution reserves a right to a jury trial in the Seventh Amendment.

          1. 8.1.1.1.1

            Libel and disparagement are different legal animals that should not be confused based on any shared offensiveness.

  10. 7

    “Before you read, beware that the Cato brief does include offensive and disparaging remarks.” I’m shocked, shocked I tell you – a brief about whether or not the federal government should be in the business of deciding which speech is offensive contains – gulp! – offensive speech? How totally unexpected.

    /end sarcasm/

    Dennis, you’ve been living in the university milieu for too long. Your readers are adults and don’t require such warnings (Malcolm excepted).

    1. 7.1

      AM Your readers are adults and don’t require such warnings (Malcolm excepted).

      What a strange thing to say, particularly as I’ve not been the least bit shy about presenting offensive examples of the sorts of trademark we can expect to see being registered should Tam win the day here.

      But then we’re used to certain folks like “Atari Man” doing and saying whatever pops into their wee brains.

      1. 7.1.1

        You do realize the slope that you yourself pursue would eliminate your ability to disparage Atari Man in your usual “swagger,” eh Malcolm?

        Truth be told, more than 95% of your posts would be abolished if their were no ability to attempt to disparage.

        Unless of course you were aiming for an Orwellian implementation…

      1. 7.2.1

        Dennis, thanks for the link to this, I just finished reading the brief and it’s a great read…and even close to what the (apparently tongue-in-cheek) trigger warning implies. If anyone is offended by this brief their skin is waaaaay too thin. And if they fail to at least smile at parts they have no sense of humor.

      2. 7.2.2

        I appreciate the humor, even though I disagree with the argument.

        Though, I’m shocked that this is an appellate brief at the United States Supreme Court. It fails to present a legally relevant argument–its all political. Not sure this is “helpful” to the Supreme Court as encouraged by the Court rules.

        Personally, I would never sign my name to such a brief.

  11. 5

    LOL guys this is the title of their brief!

    “BRIEF OF THE CATO INSTITUTE
    AND A BASKET OF DEPLORABLE PEOPLE
    AND ORGANIZATIONS
    AS AMICI CURIAE SUPPORTING RESPONDENT”

  12. 4

    Paul: I don’t assume any premises of arguments on either side of this case.

    Okay, but other people are certainly going to do that because it’s one manner of addressing the other side’s case.

    I just wish they could be better researched and presented with less misleading hyperbole.

    Did you ask Santa?

  13. 3

    The s00per deep thinker Ilya Shapiro:

    The Senate Should Refuse To Confirm All Of Hillary Clinton’s Judicial Nominees

    Nothing deplorable about that! After all, Hillary Clinton gave speeches to some Goldman Sachs bankers.

  14. 2

    No public official can be trusted to neutrally identify speech that “disparages.”

    That’s absurd. Thousands upon thousands of private citizens are entrusted with this responsibility and are, in fact, paid to manage the content-laden behavior of millions of people every day.

    Does the deplorable Cato Institute have a Director of Human Resources? I assume they do.

    All this is setting aside the fact trademarks are a specialized form of commercial “speech” (using that term very loosely) with a very, very limited purpose, and failing to “register” one’s trademark has zero effect on one’s ability to communicate any idea.

    For every “dozen” on-the-margin trademarks that the deplorables at Cato come up with, any schoolkid can come up with a zillion counter-examples that clearly aren’t disparaging, or that clearly are. Probably the only people you can’t trust to figure that out are the kind of deplorables who end up shilling fact-free nonsense for the Cato Institute.

    1. 2.1

      The thing about “public officials” — in case anyone’s forgotten — is that “the public” can (and should!) monitor their behavior and remove the officials who do a poor job.

      Kinda weird for the Cato Institute to forget that. Then again, this is a a so-called “libertarian” “think tank” that helped put an authoritarian maniac and his crew of incompetent r a cist enablers in the White House. Freedom!

      1. 2.1.1

        “The thing about “public officials” — in case anyone’s forgotten — is that “the public” can (and should!) monitor their behavior and remove the officials who do a poor job.”

        So if Michelle Lee does a poor job then people should have removed Obama? Or petitioned Obama to remove Lee? How does this work exactly?

        1. 2.1.1.1

          ““The thing about “public officials” — in case anyone’s forgotten — is that “the public” can (and should!) monitor their behavior and remove the officials who do a poor job.””

          Further, what if “the public” isn’t neutral in their policing of speech (hello political correctness culture!)?

          1. 2.1.1.1.1

            hello political correctness culture!

            Hello super tough guy who finds routine social situations difficult because he can’t show off the confederate flag tattoo on his winkie without being criticized.

            1. 2.1.1.1.1.1

              “Hello super tough guy who finds routine social situations difficult because he can’t show off the confederate flag tattoo on his winkie without being criticized.”

              6: What if the public isn’t neutral in their policing of speech?

              MM: But but but muh confederate flag!!!

              1. 2.1.1.1.1.1.1

                6: What if the public isn’t neutral in their policing of speech?

                Some people have to come up with different trademarks?

                Oh noes! You can just feel civilization crumbling.

                muh confederate flag

                Wave it high and proud, 6! You’re a very strong and powerful man! We’re all impressed.

                1. “Some people have to come up with different trademarks?”

                  The question presented is quite broader than that.

                  “Oh noes! You can just feel civilization crumbling.”

                  The gov deciding a priori what is derogatory speech and what isn’t does seem to somewhat be anti-liberal western civilization (unless you’re a big fan of puritanical western civ).

                  “Wave it high and proud, 6! You’re a very strong and powerful man! We’re all impressed.”

                  MM: But but but muh confederate flag again!!!

                2. The gov deciding a priori what is derogatory speech and what isn’t does seem to somewhat be anti-liberal western civilization

                  Not sure where you got this “a priori” bit from (applicants are entitled to due process and nobody is disputing that) but it’s helpful to remember that we’re talking about trademarks. Try to stay focused. I know it’s hard when it seems like everyone’s trying to pull that s0oper serious pill0wcase off your super manly head. A lady might even laugh at you! Oh, that would so embarassing for a big strong handsome man like you.

                3. “Not sure where you got this “a priori” bit from (applicants are entitled to due process and nobody is disputing that) but it’s helpful to remember that we’re talking about trademarks. Try to stay focused.”

                  If you don’t think that your muh lefty gubmit doesn’t pre-determine en masse what is disparaging you’re completely nuts. The whole point to this “trademark” case dispute is that Tam is trying, in his own oppressed way, to reclaim the supposedly previously derogatory phrase from being offensive (mostly its only still offensive to boomers and their related ilk from yesteryear I should note, all the asian people I know of takes that term as seriously as white people take “whitey” and “cracker”, as in nobody cares). Did the gubmit go out and gather facts as to how many people were offended? No. They just relied on what they subjectively have been informed, or felt in their whittle hearts, “is offensive” and “is derogatory” and which was determined in their mind brains before the application for trademark was even filed.

                4. Did the gubmit go out and gather facts as to how many people were offended? No. They just relied on what they subjectively have been informed, or felt in their whittle hearts, “is offensive” and “is derogatory” and which was determined in their mind brains before the application for trademark was even filed.

                  Ok, that is a fine argument as far as I am concerned, but that is definitely beyond the scope of the question on which the SCotUS took cert.

                  You are, in effect, arguing that the TTAB’s decision is not supported by substantial evidence.

                  The CAFC, however, did not reverse on those grounds. Indeed, the CAFC panel considered that the TTAB’s opinion was supported by substantial evidence. The CAFC en banc reversed on the much more sweeping grounds that the USPTO has no authority to review applications for “disparagement,” because the statute authorizing that review is contrary to the First Amendment.

                  In other words, it would not matter how much evidence the TTAB were to adduce, the TTAB would still lose. The PTO could survey every American citizen—in person, in the respondent’s native language—and find that 100% of respondents consider “Slants” to be disparaging to Asians, and the TTAB would still lose under the law as articulated in the CAFC’s en banc opinion.

                  The only question before the SCotUS is “is that the law?”. Is it the law that Congress cannot provide that marks are unregistrable if they are disparaging? The sufficiency of the TTAB’s evidence is simply beside the point for the case in front of the SCotUS.

                5. I hear you Greg, but the gov can fail for multiple reasons here.

                  “In other words, it would not matter how much evidence the TTAB were to adduce, the TTAB would still lose. The PTO could survey every American citizen—in person, in the respondent’s native language—and find that 100% of respondents consider “Slants” to be disparaging to Asians, and the TTAB would still lose under the law as articulated in the CAFC’s en banc opinion.”

                  Yes I know what you mean.

                  But still, the somewhat broader question presented does involve at least tangentially the real world efforts of a government trying to enforce such laws, in the real world, not in a fictional world.

                  “The only question before the SCotUS is “is that the law?””

                  The question presented is quoted above bruh.

        2. 2.1.1.2

          if Michelle Lee does a poor job then people should have removed Obama? Or petitioned Obama to remove Lee? How does this work exactly?

          Wherever you live, you are represented by a member of Congress. You make that person aware of the issues that concern you and, if you don’t get results and the issue is very important, then you don’t vote for that person and you actively campaign against that person’s re-election.

          People are removed from administrative positions all the time. You remember Joycelyn Elders? Do you remember the s00per d00per controversial stuff she said that got her canned?

          I do. And I’m sure it just tore you up, too, you s00per d00per serious person.

          1. 2.1.1.2.1

            “Wherever you live, you are represented by a member of Congress. You make that person aware of the issues that concern you and, if you don’t get results and the issue is very important, then you don’t vote for that person and you actively campaign against that person’s re-election.”

            And if it is a marginal issue, like hundreds of thousands are, then you have no recourse. And, if no mainstream candidates campaign on going the other way then you still have no recourse (unless you run yourself – good luck if you’re not rich and well connected! or you change the whole culture – what we’re busy doing now in front of your very eyes). Thus, political correctness (and other issues) seeped into and now rule the gov. Though finally someone with some balls came along and said “enough guys”, and Merica gave the biggest F-U in history (Michael Moore’s words) to the normal politicians and the political establishment.

            “Joycelyn Elders”

            Before my time old man.

            “In 1994, she was invited to speak at a United Nations conference on AIDS. She was asked whether it would be appropriate to promote ma sturbation as a means of preventing young people from engaging in riskier forms of se xual activity, and she replied, “I think that it is part of human se xuality, and perhaps it should be taught.” This remark caused great controversy and resulted in Elders losing the support of the White House. White House chief of staff Leon Panetta remarked, “There have been too many areas where the President does not agree with her views. This is just one too many.”” In December 1994, Dr. Elders was forced to resign by President Clinton.[1][13][14] Elders has since made a number of other statements that put her in the public spotlight, like her quote in January 1994 in the context of ab ortion: “We really need to get over this lo ve a ffair with the fetus and start worrying about children.”[8]”

            Idk sounds like there were a lot of areas she was a rebel on. Kinda like myself. But I suppose the irony of the king of lefty prezes tossing his appointed surgeon general over her speech being pointed out by you as an example of people being tossed out all the time, when I told you lefties were shting on people because of their views is lost on you.

            1. 2.1.1.2.1.1

              there were a lot of areas she was a rebel on. Kinda like myself.

              Oh, yes, you’re a real rebel. There’s nobody like you!

              1. 2.1.1.2.1.1.1

                I used to be, in terms of patents, before my positions nearly all ended up being the new establishment positions (because leadership and lawls and all that). Now I’m not really a patent rebel anymore and I have to cede that position to anon, NWPA et al., they are the new school anti-patentists I guess you could say.

                Though I am on non-patent issues! Gynocentric feminazism is now establishment, I rebel. Hard lefty anti-liberal policy is the establishment order of the day, I rebel. etc. etc.

                1. “LOL

                  On what planet?”

                  Do you even know w t f is going on in your gov over the last 8 years? Jebus chris t, so out of touch!

                2. they are the new school anti-patentists I guess you could say.

                  Only in the Orwellian sense of Opposite Day.

                3. Do you even know w t f is going on in your gov over the last 8 years?

                  Oh, right. All those colored people and women. Scary! It doesn’t look like Real America or anything like the Framers intended. It all started when the rebels stopped wearing the wigs.

                4. “colored people and women”

                  Your POCs and your muh womens have been around longer than 8 years. Do you even know what “muh progressins” you have made in the last 8 years? Maybe you at least heard of the gay marriages (probably illegal, but let’s set that one aside)? Did you hear about all the rest of your “muh (nonsensical) progressins” that have happened in the last few years? Or were you too busy up in your ivory tower dreaming of 30 years ago when apparently there were no muh pocs or muh womens anywhere in sight?

                  Here are a few things from your recent muh progressive (regressive) leftisms in no particular order just off the top of my head and not even the most absurd (some started before the last few years but are just now becoming prevalent and/or the effects are just now being felt):

                  Women now outnumber men in the workforce (and of course still work the most at home between the se xes, burning women out) and certainly have more uni degrees, women are less happy than many years ago, marriage rates are at a practically all time low, marriage as a contract is at an all time low in value (for men esp), the numbers of single moms (now with lower than ever sexual market value!) are at an all time high being subsidized by big daddy gov, while at the same time the number of available marriageable and marriage worthy (as in is marriage to them worth it/the risk) women is vanishingly small (see explosion in single moms, literally tar ded se xual norms/behavior underwritten by the boomer’s state, ridiculous lefty divorce/alimony/child support laws from yesteryear etc etc), there is a small army of men unemployed, not in training, currently placated by vidya games and pronz (which may well revolt if those are taken from them), men of all colors, though pocs less so, are actively discriminated against in hiring (more and more outright blatant stories of this every day, still no courts willing to go against affirmative action as being unconstitutional discrimination, YAY!), companies are sometimes even reluctant to hire pocs/women literally due to the perceived legal threats of potential legal action if they have to fire them for just plain ol everyday su ckxoring (more and more stories coming out each year), Asian students are now the most reverse discriminated against due to affirmative action in school admissions and white women get the most benefits therefrom (by far word on the street is) across the board (hiring school etc.), we have a glut of people with worthless degrees from uni at tremendous needlessly inflated cost to the state/feds while we still have to import H1B visa kids from other nations to fill many jobs (thanks progressive unis, keep up the groundbreaking work in gender studies!), H1B visas are now common and acting as a form of immigration (which they never were supposed to but have practically turned into) even while they amount to practically indentured servitude agreements that are at this point nearly infinitely extendable, trans people now serve openly in the military (which nobody but a few people cares much about) but this brings along with it ridiculousness like mandatory “sensitivity training” for everyone in the armed forces, the trans people get free operations to mutilate/inject themselves, but get no money for psychological treatment for their actual ailment, (long run this will up the suicide rate of trans people and soldiers near assuredly beyond their already sky high levels), they are trying to integrate women into direct combat roles, but they keep flunking out of training nearly 100%, so they’re thinking about making the requirements lowered for them, they’re about to add women in to the draft (or at least they would have without Trump getting in, he might stop this), there is a whole huge kerfuffle about Title 9 nonsense going on regarding trans people now magically getting protections for being trans (even though they strangely did not when it was passed) with states being threatened with less funds if they don’t provide such (thankfully Trump will likely end this), there are entire city govs openly defying federal immigration laws by declining to cooperate with federal authorities calling themselves “sanctuary cities”, the (usually single) mothers of outright criminals are touted as heros worthy of emulation and all deference at major political events while strangely dedicated agents of the state itself known as police are demonized in mainstream political discourse (even when they’re POCs lol!), multiple state run administrations have openly bowed their entire universities to the whims of minorities and are openly hostile to everyday culture with their “policies” which people can be fired/expelled for violating (not to mention hiring conservatives), unis are openly creating policies against “sexual assault” that are blatantly one sided assaults on males that intentionally involve no due process (much less being adjudicated in a court of lawl by a jury), and that’s to say nothing of the power differential created for women to abuse in such matters at their whim (and they apparently do, rough estimate numbers being 1/20 times, or even more often if we count reports of things blatantly not against the law, and they usually don’t get punished for even false reporting much less perjury), your gov continuously repeats false ideological information in the form of outright propaganda about “muh ‘wage’ gap” (actually a lifetime earnings gap the majority of which is due to the women themselves making choices that they think are best for themselves, with them probably being correct), constant crying about the “muh ‘wage’ gap” even though women actually spend like 80% of total disposable income (where do they get all this extra money from I wonder?!?!?!?! Are women bank robbers one and all?!?!?), false raep stats that demonize your everyday male, forced education in uni on the false raep stats etc. that alienate your everyday male, oh and household wealth/prosperity as a whole is taking a huge hit as a result of all this which then are argued by mainstream politicians to “necessitate” more gov interventions.

                  WHEW! PROGRESS! WOMEN! POCS! OTHER MUH VICTIMS! THEY’RE THE BESTEST EVAR!

                  Thanks literal lefty brain control and gov. regs/laws/efforts for all that just mentioned!

                  And remember, this is just the tip of the newschool regressive iceberg!

                5. I look forward to hearing from MM the “social conservative” about the changes to the planet upon which he resides over the last 8 years of his muh progressins.

                  Still no word.

                6. He’s too busy spewing disparaging (and mindless) ad hominem at anyone who does not Belieb as he Beliebs.

            2. 2.1.1.2.1.2

              Merica gave the biggest F-U in history to the normal politicians and the political establishment.

              Except that he lost the popular vote by 2.6 million and succeeded only with the aid of an incompetent (“liberal” – LOL) media who promulgated his r@cist lies and propped up an endless stream of non-stories based on Russian-hacked emails from his opponent.

              But other than that, sure, you and your “rebel” bros really gave “the establishment” the finger! The orange maniac is totally different from the “normal” Republicans he’s surrounding himself with! Sure he is. If by “different” you mean “surprisingly less competent and even more of a jrk”.

              1. 2.1.1.2.1.2.1

                “Except that he lost the popular vote by 2.6 million and succeeded only with the aid of an incompetent (“liberal” – LOL) media who promulgated his r@cist lies and propped up an endless stream of non-stories based on Russian-hacked emails from his opponent.”

                Muh popular vote! Muh liberal propaganda machine incompetence!

                Pop vote means squat, as you know.

                Even so, trust me MM, the lefty (now anti-liberal) propaganda machine is one of scant few reasons modern lefties even have a prayer. Without their “incompetence” (aka race/sex baiting, male bashing, etc.) you guys crash and burn, hard. Indeed, it is incompetence that fuels the hard lefty cause.

                1. It is really not that difficult to understand that this country did not want a pure popular vote mechanism (the why); further, it is not all that difficult to understand what that electoral college mechanism achieves (the how).

                  Whining because the Ends happen not to align with your desired ends is just that: whining.

                  It su cks that we have Trump – every bit as it would if we had Hilary.

                  But the (to use the “6-ism”) of “muh pop vote” at this stage of the game as if it were not known how our election system works is more than a bit pointless – it attempts to kick up dust of a fact that really is not important given the known system we have.

                  And note that attacking the weakness of your tactics is NOT “defending the other side.” It is just pointing out that your tactics do not – and will not – suffice to win over anyone capable of critical thinking.

                2. Whining because the Ends happen not to align with your desired ends is just that: whining.

                  Except I’m just laughing at the idea that “the popular vote means nothing.” In fact, it means quite a bit. The orange maniac lost the popular vote by quite a margin — something that his party seems to be making a habit of. Also, I forgot to mention the orange maniac party’s massive voter suppression efforts. Oops!

                  But he totally has a “mandate” to make the rich richer and make everyone else suffer! Yup. Sure he does.

                  It su cks that we have Trump – every bit as it would if we had Hilary.

                  LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

                  Because they’re the same! Yup. Neither of them are named “anon”, therefore they’re two people who aren’t perfect. Any other differences are just trivial. “anon” says so! And he’s a very serious person. After all, he “protested” with a Bernie vote! Very very serious stuff.

                  Tell everyone: who is “we”, “anon”? Are you brave enough to describe yourself to your “audience” yet?

                3. your tactics do not – and will not – suffice to win over anyone capable of critical thinking.

                  Again: more people voted for Hillary Clinton than the orange maniac. That’s in spite of the media carrying water for the orange maniac and his l i e s, and in spite of his party’s massive voter suppression efforts.

                  And pretty much nobody voted for you, “anon”, or the fake libertarian you secretly lusted after.

                  Lastly, I’ve no idea what “tactics” you’re referring to. I’m just stating the facts, silly b0y. And take a look at the map: the best critical thinkers on the planet voted Democrat. Or do you think all the critical thinkers are spread out in rural Tennessee these days? LOL Keep digging. And keep the laughs coming.

                4. And take a look at the map: the best critical thinkers on the planet voted Democrat.

                  Obviously, that is a mistatement.

                  Not to say that voting Republican is intelligent (or voting ANY party just because of “party” is intelligent – in fact, voting party because of party is certainly a sign of a LACK of ability to think critically).

                5. The “we” in the phrase “if we had Hilary” is the nation as a whole.

                  BOTH parties put out CRP candidates, and while they indeed may be different, they both remain CRP.

                6. “ And take a look at the map: the best critical thinkers on the planet voted Democrat.”

                  Obviously, that is a mistatement.

                  As a statistical matter (which is obviously what I’m talking about), there’s no mistatement whatsoever.

                  But go ahead and munch some more oxycontin and tell yourself otherwise! You can live in a fact-free world if you want.

                7. You cannot track “the smartest people” to a “statistical likelihood based on location”

                  That’s an example of false equivalency.

                8. You cannot track “the smartest people” to a “statistical likelihood based on location”

                  LOL

                  Remember folks: guys like “anon” will do and say literally anything rather than admit that their full of shirt.

                9. Double down with the false equivalency and your oh so typical number one meme of Accuse Others Of That Which Malcolm Does.

                  Or are you going to back up your inanity and show how a geographical “statistic” will pinpoint a vote to a particular person…?

    2. 2.2

      “Thousands upon thousands of private citizens are entrusted with this responsibility and are, in fact, paid to manage the content-laden behavior of millions of people every day.”

      Um those private citizens are not “neutral” they just do whatever their (usually politically correct nowadays) employer tells them to do. Just as one would expect the gov to do. In a non-neutral way.

      1. 2.2.1

        those private citizens are not “neutral” they just do whatever their … employer tells them to do

        News flash: if they’re not neutral, then they aren’t doing their job. They can’t favor one religion over another, and they can’t favor one race over another and they can’t favor one gender over another. Disparagement is disparagement.

        1. 2.2.1.1

          “if they’re not neutral, then they aren’t doing their job. They can’t favor one religion over another, and they can’t favor one race over another and they can’t favor one gender over another. ”

          That’s not what they mean by “neutral” here and you know it jackas. They mean that they do not come into the situation with pre-ordained notions of what is derogatory. Which those private individuals whom you referenced most certainly do come with, and are tasked as doing. It’s enforced (usually lefty nowadays) puritanism. And you very well know it.

          1. 2.2.1.1.1

            pre-ordained notions of what is derogatory

            LOL

            enforced (usually lefty nowadays) puritanism.

            LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

              1. 2.2.1.1.1.1.2

                I think that is a fairly safe prediction. I do not expect to be laughing a lot after Mr. Trump has had a full four years to drive the country into a ditch. I have seen this movie before (this is the third in a series, a sequel to “George W. Bush part I” and “George W. Bush part II”). I know how it ends, and I was not “lol”ing at the end of either of those flics.

                1. War, recession, and a vicious dismantling of the social safety net do not merit a lot of “LOL”s from me or mine.

                2. Oh, I’m not going to be laughing at the terrible things that the Republicans are going to unleash on the world. But I’ll be laughing at 6 and his bizarre b.s.

                  Unlike 6, I’ve seen this movie before.

        2. 2.2.1.2

          and they can’t favor one race over another and they can’t favor one gender over another.

          Unless of course you decide that the goal for all races and all genders is some type of “privilege” and then you can use that label to do against “those” with privilege the very thing that you say cannot be done in a “neutral and doing their job” type of thing.

          Oops.

          1. 2.2.1.2.1

            Unless of course you decide that the goal for all races and all genders is some type of “privilege” and then you can use that label to do against “those” with privilege the very thing that you say cannot be done in a “neutral and doing their job” type of thing.

            Can someone translate this s00per deep thought for everyone?

            1. 2.2.1.2.1.1

              You want to pretend that you were born yesterday and cannot see the PC fallacy in the “White Man’s privilege” position….?

              Really?

              1. 2.2.1.2.1.1.1

                the PC fallacy in the “White Man’s privilege” position….?

                That’s right: keep piling more incomprehensible cr@p on to of the cr@p you already wrote!

                You’re a very serious person.

              2. 2.2.1.2.1.1.2

                Anon your “power level” (knowledge) is above MM’s. His power level is still frighteningly low, like most idi ot usually older lefties that aren’t interested finding out or acknowledging their own “side” or “party” messing up (especially their “thought leaders” and young people).

                Also anon you need to hide your power level in public. The PC po po are ever vigilant.

            2. 2.2.1.2.1.2

              I foresaw that some people wouldn’t understand what anon is talking about here. This is generally because he wrote it in poor grammar and you have to be an expert on lefty PCness to understand the subject matter in the first place.

              Here is it annotated for you:
              “Unless of course you decide that the goal for all races and all genders (to have a nice life, be respected, not suffer too much from various discriminations etc. etc.) is some type of “privilege” (white christian hetero non-disabled cis male etc privilege to be exact, but sometimes shortened to just “white priv”) and then you can use that label (white priv) to do against “those” with privilege (white cis hetero non-disabled christian males) the very thing (discriminate against them) that you say cannot be done in a “neutral and doing their job” type of thing (people say you supposedly can’t discriminate).”

              And yes MM, while you were busy dreaming in your ivory tower, your fellow neo-lefties have been doing this, explicitly. If you think this is something “bizarre” that I’m making up (or that anon is making up), I can provide you mountains of links to evidence. To be clear, I wouldn’t have believed it myself if I didn’t see literally hundreds on thousands of vids and stories of it. Even the mainstream media is showing signs as of this very day of starting to report on it. They’ll start to report on it as best they can while “spinning” it to their own ends (more discrimination like that mentioned above).

              1. 2.2.1.2.1.2.1

                you have to be an expert on lefty PCness

                Self-del00sion is a powerful dr ug indeed.

                Sure, 6. You’re an “expert.” Keep telling yourself that.

                1. Self-del00sion is a powerful dr ug indeed.

                  A derivation, no doubt, of the number one Malcolm meme of Accuse Others Of That Which Malcolm Does.

                2. “Sure, 6. You’re an “expert.” Keep telling yourself that.”

                  Says the man who is literally at my knee, as we speak, learning about all the “progressin’s” he accomplished over the last 8 years.

              2. 2.2.1.2.1.2.2

                “Unless of course you decide that the goal for all races and all genders (to have a nice life, be respected, not suffer too much from various discriminations etc. etc.) is some type of “privilege”

                And the train goes off the rails. Wheeeeee!!!

                It’s really cute to see you two joining forces on this s00per d00per important common cause! Oh, the poor white man. So persecuted! Who will stop the fl0gging? Who will stop the enslavement? 6 and “anon” , that’s who! With their deep deep serious arguments.

                LOL

                you can use that label (white priv) to do against “those” with privilege (white cis hetero non-disabled christian males)

                Oh, the list of grave injustices perpetuated by our country against “white cis hetero non-disabled christian males” is sooooooo long and horrifying it will make all the children cry. Let’s all weep for them! Boo hoo hoo hoo hoo. Don’t worry: your oxycontin is on the way! Eat up and pull the lever for the Repukkkes. You’ll be just fine. You can trust them!

              3. 2.2.1.2.1.2.3

                “It’s really cute to see you two joining forces on this s00per d00per important common cause!”

                Oh it’s hardly us “2”. We grow daily. I myself have spread the good word far and wide and received much invitation. Indeed, even lefties themselves irl will listen and often more than half understand. It takes a real life ignorant boomer likely-hippy hold out with his head stuck in the sand like MM to sit and not pay attention and think it’s all “crazy right wing stufflololol”.

                “Oh, the poor white man. So persecuted! Who will stop the fl0gging? Who will stop the enslavement? 6 and “anon” , that’s who! With their deep deep serious arguments.”

                Who do you think? Put your lefty thinking cap on and thunk real hard!

                “Oh, the list of grave injustices perpetuated by our country against “white cis hetero non-disabled christian males” is sooooooo long and horrifying it will make all the children cry.”

                It grows by the day. Let’s set the small stuff aside. The main thing is of course every day that near-autists like anon, and everyday people like myself go without women to create fam and wealth with the pressure mounts on the “grave injustice” of a life literally denied for literally no reason by a sick culture, the literal result of lefty mind control. Every day our ranks swell as do the ranks of the confused, but decidedly unhappy, and now practically unmarriageable women that would be filling those roles. Women who are often having to “marry down” if they can at all, firmly against their wishes (read: their hypergamy). And it doesn’t matter how much pudding we get on the side, I’ve literally had three different ones in the last two weeks, that is no replacement. Societies of this sort historically explode/implode, and we would have long before this if not for vidya, pronz, sports and leftover wealth from yesteryear.

                Ignore this at your own, and your society’s own peril. Note that even your congress critters are starting to get the message and are talking about it on mainstream media (NPR etc.).

                “Eat up and pull the lever for the Repukkkes”

                What I lurve is that MM still sees this issue as “right” v “left” because he’s old and ignorant. This is beyond right and left. The right lost, and the left created an untenable society. Time for the left to lose also.

                Even now there is some single dood reading this exact post, holding his tongue, but who is being influenced.

                1. 6, women.

                  For a hundred thousand years of modern man’s history the foundation of the family, the bedrock of civilization, told in the last 100 years or so that they are oppressed, denied rights and they should be just like men in everything. Thus they strive for careers but find that life passes them bye.

                  Tragic.

                1. Greg, do you agree or disagree that demonizing people by any characteristic is wrong?

                  I recall a time when may called Africans subhuman. Obviously to justify slavery and segregation.

                  I have read Mein Kampf and talked with a man who as a boy grew up in the Baltic States under the Nazi regime. Nazi classified everyone, some fully human, others not. This justified extermination and slave labor.

                  I see the modern left demonize the fetus, calling it a thing. This to justify its wanton extermination.

                  Then we have religion and its boogeymen, and here I could go on for hours.

                  Then we have the likes of MM demonizing white folk generally, and Republicans in particular. Bigoted to the extreme and very sick.

                  What galls is that some forms of demonization are PC in America. This is a sick society made sick by its demonizers.

                  No wonder there is growing anger in American against the purveyors of hate.

                2. [D]o you agree… that demonizing people by any characteristic is wrong?

                  As every, Ned, you ask interesting questions. I suppose I have not given this question much thought. I would happily agree that demonizing people is unhelpful, but I have not much considered whether it is wrong.

                  Of the top of my head, my initial instinct would be to say that it is wrong to demonize (by which I mean “disparage in a particularly vile or vehement manner”) people for characteristics outside of their control (skin color, anatomy, etc.). I am not sure that it is wrong to demonize someone for holding a particularly antisocial ideology (that is to say, when American propagandists contrived anti-Nazi slogans, posters, etc during WWII, my own moral intuitions do not tend to classify this work as wrong, no matter how skeptically I scrutinize these intuitions). If you intended “characteristic” to exclude “ideology,” then I suppose I agree that it is wrong to demonize a person for the person’s characteristics.

                  I would add two caveats to that answer, however.

                  (1) I have to wonder how often in modern U.S. life it arrives that anyone is demonized for a characteristic. Most of the particularly vehement or vile disparagements that I can recall off the top of my head related more to ideology than to traits beyond the target’s control.

                  (2) To say that “demonizing” is “wrong,” elides over the rather salient fact that not all “wrongs” are equal. Some are much more wrong than others. Particularly, when someone is a position of power or high-status demonizes someone of lesser power or status (so-called “punching down”), that strikes me as a great deal more wrong than when the social dynamics are reversed (“punching up”), even if both are wrong in some degree.

                3. Keep in kind that my original post here simply lambasted Malcolm for making a statement NOT supported by those who in their PC minds would think it “ok” to demonize those who merely have what is a desired end state of not being discriminated (let alone, the actual discirimination of the so called “non-discrimatory” reverse discrimination).

                4. Mmmm, yeah Greg, btw, being denied “a normal life” for literally, I repeat literally, no fcking reason other than it makes lefties feel nice in the hearts is not an “issue of perspective”. If they (men and women) see fit to be tomc unts then guess what? Some sht going to go down eventually.

                5. “What galls is that some forms of demonization are PC in America. This is a sick society made sick by its demonizers.”

                  That is very correct Ned.

                6. “but I have not much considered whether it is wrong.”

                  You better get to considering bucko, because the ramifications of that demonization are fixing to take your country by storm in the next decade.

                  “I am not sure that it is wrong to demonize someone for holding a particularly antisocial ideology (that is to say, when American propagandists contrived anti-Nazi slogans, posters, etc during WWII, my own moral intuitions do not tend to classify this work as wrong, no matter how skeptically I scrutinize these intuitions)”

                  In order to convince you, I will bring up what you think the point of that demonization is. Is it to ultimately harm the target? Spoiler: it is.

                  “(1) I have to wonder how often in modern U.S. life it arrives that anyone is demonized for a characteristic. Most of the particularly vehement or vile disparagements that I can recall off the top of my head related more to ideology than to traits beyond the target’s control.”

                  Surprisingly often when you start to look around. I assure you that you are yourself demonized by a large crowd of people.

                  “To say that “demonizing” is “wrong,” elides over the rather salient fact that not all “wrongs” are equal. Some are much more wrong than others. Particularly, when someone is a position of power or high-status demonizes someone of lesser power or status (so-called “punching down”), that strikes me as a great deal more wrong than when the social dynamics are reversed (“punching up”), even if both are wrong in some degree.”

                  Yay relativism!

                7. [W]hat… [is] the point of that demonization…[?] Is it to ultimately harm the target?

                  Surely it depends on circumstances, no? It seems fairly clear that when the Klan demonizes racial and religious minorities in the U.S. south, they mean to harm those minorities. On the other hand, when U.S. propaganda agents demonized Nazis, I am not sure that they regarded their goal as to cause harm to the Nazis. If a Nazi were harmed as a result of a U.S. propaganda poster, I dare say that the propaganda officers did not lose much sleep. That said, I expect that they liked it even better when a Nazi was convinced by the propaganda to renounce nazism. I hardly call it “harm” when a person is persuaded to leave aside antisocial ideologies.

                  In other words, sometimes the intent of demonization is to harm, and sometimes it is not.

                  Did you mean your rhetorical question to establish that demonization is wrong when it harms and not wrong when it does not? If so, I can provisionally agree with the thesis, with the proviso (noted above) that I have not given this question a lot of thought, and would not wish to commit myself firmly to any particular position on the matter without such thought.

                  Yay relativism!

                  Yay, indeed. Some wrongs are worse than others. Petty shoplifting is not as bad as armed robbery. Children telling white lies are not as bad as agents provocateurs planting false intelligence to instigate wars. Learning to recognize a hierarchy of moral wrongs is part of what it is to be a grown up.

                  That which the Jim Crow South did is worse than what the Black Panther Party does (even if each is doing largely the same thing as the other). If someone cannot see that, it merely stands as evidence that the person in question still needs to grow up some.

                8. What galls is that some forms of demonization are PC in America. This is a sick society made sick by its demonizers.

                  No wonder there is growing anger in American against the purveyors of hate.

                  Whatever you say, Ned. I confess I can barely understand assertions like this. As I said above, I think a modicum of perspective would clear up 90% of this misbegotten anger.

                9. “On the other hand, when U.S. propaganda agents demonized Nazis, I am not sure that they regarded their goal as to cause harm to the Nazis.”

                  Sure they did. They totally wanted to harm the nazis as they were ideological near opposites. National socialists (socialists with a nationalistic focus, and in the case of the germans also a racial focus) vs a democratic republic that was undertaking the transformation into a welfare state. Not to mention the jews in the US propaganda system at the time being ahem, “somewhat in opposition to” nazis who were literally out for their blood.

                  “That said, I expect that they liked it even better when a Nazi was convinced by the propaganda to renounce nazism. I hardly call it “harm” when a person is persuaded to leave aside antisocial ideologies.”

                  There are other actual acceptable ways to persuade people away from antisocial ideologies bruh. If you start allowing for propaganda problems always follow.

                  “Did you mean your rhetorical question to establish that demonization is wrong when it harms and not wrong when it does not? If so, I can provisionally agree with the thesis, with the proviso (noted above) that I have not given this question a lot of thought, and would not wish to commit myself firmly to any particular position on the matter without such thought.”

                  Not really, but yes it is certainly bad when it is actively causing harm. The meat of the issue is when the propaganda is accomplishing something considered “good” by whoever is doing it, but it is also generating harm (see nearly every propaganda in existence, because that’s why they have to make the propaganda in the first place).

                  “Yay, indeed.”

                  You’re going to think “yay indeed” when all of a sudden all the “tiny” wrongs done to whyte mails etc. etc. when something really bad happens as a result of all those “tiny wrongs” not being done away with. See Greg, the lefties rely on relativism to try to make it out that what they’re doing to the whyte/mails etc. “isn’t so bad” (when they’re doing it for literally no reason, other than maybe their own power). From the perspective of the whyte/mails etc affected thereby those people may have a different opinion however. This is by design because the lefties themselves explicitly deny the whyte/mails any of their “muh empathy” they extend to any of their “muh victims” groups. And those other people do disagree with the lefties. Thus which leads us to an impasse. One where leftism must be disposed of, lest the lefties “oops accidentally” end up in a blood bath in the streets 20 years hence when that “difference of opinion” leads the other side to take actual irl measures. Something I’m sure MM would prefer to not have happen.

              4. 2.2.1.2.1.2.5

                6, what I don’t like is anyone or any movement demonizing everyone of a particular type or character.

                1. Ned,

                  Double down that with the “idea” that an entire such class are demonized because the desired ideal for all of not suffering discrimination may have been achieved to a larger scale, and thus (pe versely) it is “only fair” to employ the very E V I L of discrimination against that group.

                  But that is exactly what the Liberal concoction of “White Privilege” is.

                2. Anon, it’s because there is an actual goal under modern PC culture. And perhaps not surprisingly it’s to implement some form of marxism using their “my victims” to rise up instead of the workers. But, and this is the funny part, the whole PCness thing discarded this goal for a commie revolution a long time ago, and now the meme of PCness just lives on, mindlessly in the minds of lefties who think they thunk it up themselves (spoiler propaganda put it there).

    3. 2.3

      MM, while I agree in principle that the government should cancel disparaging marks, I am uncomfortable with allowing the government themselves to make the decision on what marks are disparaging. I think that is why the Federal Circuit ultimately came out the way it did and probably presages the results of the Supreme Court.

      I thought as an alternative, we could place a decision on whether a particular mark is disparaging to a jury. Only that way, the government role would be ministerial in that they would simply cancel a market that has been previously held to be disparaging in a court of law and by a jury.

      What you think?

      1. 2.3.1

        I think that you still have a very real problem with the First Amendment and the right to be offensive.

        Kowtowing to Political Correctness is simply not the answer.

        1. 2.3.1.1

          Kowtowing to Political Correctness

          Because if people are permitted to tell “anon” he’s an 0ffensive t w i t and he can’t get his way, it makes life a wee bit harder for s0 ci0paths like “anon”.

          Boo hoo hoo hoo hoo hoo!

          Maybe — just maybe — you belong under your rock, “anon.” You’re not alone, you know. There’s lots of other cavemen to keep you warm.

          1. 2.3.1.1.1

            Your feelings – as so delightfully expressed in pure disparagement (and the irony surely lost on you) are noted.

            1. 2.3.1.1.1.1

              the irony surely lost on you

              There is no “irony” in what I wrote, “anon.”

              You’re a giant crybaby who needs constant attention and coddling. If you dont’ get it and someone else gets praised, then “unfair!” and “bias!”. That’s you.

              You’ve got the emotional maturity of a three year old. There is no “irony” in pointing this out to everyone for the zillionth time.

              1. 2.3.1.1.1.1.1

                You not seeing the irony certainly does not mean the irony isn’t there.

                Just think about your number one meme as you engage in yet more empty ad hominem (disparagement that would not get by your own desired PC-ness if that were to be left to run amuck).

      2. 2.3.2

        I think MM and others are likely just going to think that your system simply allows for a lot of “disparaging” marks to fly “under the radar” of never getting cancelled.

      3. 2.3.3

        I think that is why the Federal Circuit ultimately came out the way it did…

        Here I agree with you, Ned.

        … and probably presages the results of the Supreme Court.

        Here I disagree. The SCotUS rarely takes cert to the CAFC to affirm. Especially in view of last term’s Walker decision, I think that the smart money is on reversal of the en banc CAFC decision.

      4. 2.3.4

        I thought as an alternative, we could place a decision on whether a particular mark is disparaging to a jury.

        I share your concern about leaving it to an administrative agency to say what is and is not “disparaging.” As a practical matter, however, suits to cancel marks will be brought as suits against the PTO in the ED Va. That means that you will be entrusting—as a matter of national law—the question “what is disparaging?” to the jury pool of eastern Virginia.

        This is hardly a representative canvas of community views. You will simply be substituting the judgment of one set of eastern, educated, upper middle class professionals (residents of the ED Va., the most highly educated district in one of the most highly educated states in the nation) for another set (TTAB personnel). I am not sure that this actually serves as the safe-guard against snobbery for which you are hoping.

        1. 2.3.4.1

          I am not sure that he was hoping for any safeguard against snobbery.

          (snobbery likely being considered a disparaging word, your post too, would not be allowed if the PC ruled)

          1. 2.3.4.1.1

            (snobbery likely being considered a disparaging word, your post too, would not be allowed if the PC ruled)

            Never in my life have I encountered a snivelling bed-wetter as hung up on “political correctness” as you are. What happened to you, “anon”? Did someone shame you at the Thanksgiving table because you shared your bizarre views about women?

            Or what? You seem really traumatized.

            1. 2.3.4.1.1.1

              How odd of you and your characterizations (or more to the point, your mischaracterizations).

              Maybe you might consider actually discussing the topic instead of the pure fantasy ad hominem….

              You project a level of emotion unconnected with my posts, and given your well known number one meme of Accuse Others, one can easily presume that it is you that suffered some terribly debilitating emotional event.

              Is that what prompted you to a career in a profession in which you hold so much enmity towards the work product and the people providing that work product?

              1. 2.3.4.1.1.1.1

                your well known number one meme of Accuse Others,

                Says the path 0 l0gically hypocritical n utc@se in a comment in which he says nothing except “No, you are!”

                I mean … wow.

                1. You certainly can accuse others of that which you do – and you DO so clearly well beyond anyone else in the universe.

        2. 2.3.4.2

          The more I think about this, the harder pressed I am to understand the application of the only-a-jury principle. Imagine a world where the SCotUS makes that rule. That would be, in effect, a concession that Congress has the power to impose this restriction on trademark registration. That is to say, in order to contrive the only-a-jury rule, the SCotUS has to hold that it does not violate the First Amendment to restrict registration of disparaging marks.

          However, Congress has also assigned to the USPTO the task of determining whether a mark is registrable, and surely it lies in the Congress’ power to empower the USPTO with that authority.

          So, in the world in which the only-a-jury rule exists, we have to imagine that the Court has held that (1) Congress has the power to restrict the registration of disparaging marks; and (2) Congress has the power to assign the USPTO the task of determining which marks are registrable; but (3) Congress does not have the power to assign to the USPTO the task of assessing whether a mark is disparaging.

          Somehow, I do not see how you can make parts (1) and (2) of that scheme fit together with (3). Of course, the SCotUS does not have to make its constitutional jurisprudence logically intelligible (pace the various IV amendment contortions it has manufactured over the years), but usually the Court is only willing to insist on such contortions where some serious real-world outcomes are at stake. Trademark registration might seem passionately important to those of us in the biz, but it is less than a yawn to the public in general. It would not be worth torturing the constitution like this just for the gratification of trademark attorneys.

          I just cannot see the Court willing to defy logic and common sense in the way necessary to make points (1), (2), & (3) above all stand simultaneously. I can plausibly see them extending Walker to uphold the statutory prohibition on disparaging marks, or I can see them throwing the statutory prohibition out entirely as contrary to the First Amendment. I cannot see them occupying the half-way position of the only-a-jury rule, however.

          1. 2.3.4.2.1

            Greg, the underlying justification for assigning to a regulatory agency the decision in any matter requiring expertise is agency expertise. If the matter is not a matter of the expertise of an agency, but a matter of general concern to society as a whole, then there is no real justification for assigning the decision to the agency. In such a case, the rights of owners should be litigated in the court of law with access to a jury as a general matter; and when one’s life or property is at stake, due process (guaranteed by the Magna Carta) requires that such matters be tried to a jury.

            Moreover, the seventh amendment guarantees a right to a trial by jury of such matters that were tried to juries at common law. Surely whether a mark is disparaging is the kind of issue that juries dealt with at common law, because disparagement was an issue tried to juries at common law.

            1. 2.3.4.2.1.1

              Greg, the underlying justification for assigning to a regulatory agency the decision in any matter requiring expertise is agency expertise.

              Sure, but I am not sure that we can really parse that principle as finely as you need for your response to hold. I agree that the PTO have no more expertise than the general population when it comes to determining what is disparaging, but they do have more expertise when it comes to examining statutory preconditions of registrability. I do not think that Congress is obliged to show that a given agency is expert in every detail entrusted to the agency’s care before Congress might be permitted to entrust each detail to the agency. It is enough if, in the broad contours, the statute sets out a mission, and the agency is charged with that mission, even if certain details of that mission might be matters of more general interest and ability.

              1. 2.3.4.2.1.1.1

                Only when the issue is really new, of Congress’s creation, should the decision be given to an agency. Cf. Curtis v. Loether.
                link to scholar.google.com

                But most trademark law is the stuff of common law. What is Federal is the requirement that the mark be used in interstate or foreign commerce. That is the only stuff that should be litigated and decided in the USPTO, and that upon registration. Everything else is for the courts and juries IMHO.

                1. Just to be sure I understand, are you saying that a concededly disparaging mark should be registered, and the only remedy against its registration is that someone may bring an opposition (in a district court, necessarily tried to a jury) to have it canceled? Or would it suffice, according to your theory, to have the USPTO refuse to register the mark on the grounds of disparaging nature, and leave the registrant the right to appeal to the ED Va. and seek a jury trial there?

  15. 1

    Re: Registering a trademark is a “government granted and enforced right to silence speech of others.”
    It’s unfortunate that more legal academics writing articles do not even seem to attempt interaction with practitioner-experts in the legal specialty they are writing about.

    1. 1.1

      .It’s unfortunate that more legal academics writing articles do not even seem to attempt interaction with practitioner-experts in the legal specialty they are writing about.

      Could you be more specific about what’s troubling you, Paul?

      1. 1.1.1

        Assuming that question was not sarcasm, any IPL attorney should be well aware that no trademark can preclude any non-trademark-confusion usage of any trademarked words, much less “government enforcement.” We all mention trademark words like “Apple” on this blog and elsewhere all the time. The Federal Trademark Dilution Act of 1995 (FTDA), an amendment to the Lanham Act of 1946, additionally specifically exempted “noncommercial use” of trademarks from liability, essentially providing a statutory basis for their free speech protection, even for ridicule, criticism or ugly modern art.

        1. 1.1.1.1

          But Paul, The Supreme Court has repeatedly held that commercial speech is still protected speech under the US Constitution. It is still speech even if it creates customer confusion.

          1. 1.1.1.1.1

            ? Thanks Dennis, but I don’t see how that is inconsistent with anything I said above about NON-commercial use of trademarked words?
            Commercial use of trademarked words by competitors – to create customer confusion for commercial benefit purposes – is, of course, NOT protected from trademark suits.

              1. 1.1.1.1.1.1.1

                In other words, Malcolm is kicking up dust (again), and Paul is trying to squelch that dust kicking.

          2. 1.1.1.1.2

            Commercial speech is not that protected. We accept a lot of content-based limitations on commercial speech. You can’t lie about your products (you cannot sell peanut oil and call it olive oil), you can be forced to say true things about your products (cigarettes cause cancer), and you can be forced to say false things about your services (in some states), and many other examples. So perhaps it is fair that the government, when granting procedural advantages to enforcement of trademarks, decides that it is not going to grant commercial advantage to those using disparaging or obscene marks. It still leaves Tam free to co-opt the racial slur, and freely use the slur in commercial and non-commercial speech, and still allows him to enforce the mark as commercial speech.

            1. 1.1.1.1.2.1

              There remains a clear difference between “not that protected” and protected under the First Amendment.

              The case below touches upon this and firmly states that under any analysis, this type of attempt by the Government runs afoul of the (even lower level) Constitutional protections.

                1. Because this restriction is in fact tied to expression and the First Amendment, by which the “content-neutral” aspect is directly in play.

                2. Can I patent a card game called “R@pe the Little Thai Kid”? R-sh Limb@ugh will love it.

                  Or can I patent a doll in the form of an African-American teenager that bleeds kool-@id when you shoot it with a gun? You know, for future little r @ cist cops to play with. Fun! And freedom! Because the First Amendment says so.

                  And progress. Don’t forget the progress!

                  Tell everyone, “anon.” You’re a very serious person. I’m sure you’ve thought about this a lot.

        2. 1.1.1.2

          any IPL attorney should be well aware that no trademark can preclude any non-trademark-confusion usage of any trademarked words, much less “government enforcement.”

          Any IPL attorney should also be aware that if you’ve got the mark and you’ve got the money then you don’t need to “win” at trial in order to “succeed” at shutting down others.

          More specifically, however, I believe that the remark you quoted assumes various premises of the pro-Tam crowd, i.e., that trademarks are speech, that they are an “entitled” form of speech worthy of special protection and status, and that registration is necessary for that speech to be “owned” and exploited by the entitled “creator”. That ownership and exploitation requires policing of others. That policing can be zealous to the point of absurdity, as we’ve all seen.

          1. 1.1.1.2.1

            I don’t assume any premises of arguments on either side of this case. I just wish they could be better researched and presented with less misleading hyperbole.
            Yes, more granting of attorney sanctions is needed for baseless trademark suits. That can now be based on what the Sup. Ct. has recently done for such patent suits.
            But note that lower cost TTAB attacks on the PTO TM registration may well be possible in some of those cases?

          2. 1.1.1.2.2

            if you’ve got the mark and you’ve got the money then you don’t need to “win” at trial in order to “succeed” at shutting down others.

            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.

        3. 1.1.1.3

          You miss Prof Tushnet’s point. Professor Tushnet understands that Trademarks don’t preclude non-trademark confusion usage of trademarked words. The argument is that, without the IP statutes, there would be no preclusion on anyone using any words (except, maybe, absent common law claims for fraud.)

          Intellectual property is not a Lockeian property right. IP rights are negative rights granted by the government. The grant of a trademark necessarily precludes a business from using that same language–otherwise they could use the same name (absent common law fraud). Natural, inalienable rights (freedom of speech) are positive rights granted by Our Creator. Huge difference between the two.

          1. 1.1.1.3.1

            Actually, trademark rights ARE more like “common law claims for fraud”* and existed long before both individual states and then the Federal Congress [under the Commerce Clause, for interstate trademarks] enacted trademark registration systems which merely increased some of that protection. And, this is a serious Supreme Court case, not a libertarian philosophy debate.

            *you have also overlooked slander, and overlooked the famous Sup. Ct. example of other non-protected speech by Justice Holmes of “shouting fire in crowded theater.”

          2. 1.1.1.3.2

            If you are on this debate, you at least you are now understanding Professor Tushnet’s argument.

            As far as common law trademark rights, Professor Tushnet presented a convincing argument on how trademark rights are not just there to prevent deception. Therefore, the Lanham Act goes beyond common law rights. Since you mentioned “IP law”, do you want to argue that there were common law patent rights? If not, are you conceding that patents are privileges granted by the government that can be disposed of to Congress’s whim?

              1. 1.1.1.3.2.1.1

                “Subject to the provisions of the title.” That is, it does until Congress says it doesn’t. What other property right does this?

                1. While indeed “subject to,” the aspect of being granted the status of personal property invokes other Constitutional protections of such – and in fact limits what subsequent changes to the “subject to” may be made by Congress.

                  Congress simply is not free – even being the correct branch with allocated authority per the Constitution – to make additional laws that violate other Constitutional protections.
                  Note as well that the AIA did NOT change this aspect of already-designated property having other Constitutional protections (no hiding elephants in mouse holes).

                2. I agree with the broad strokes of that which you say in 1.1.1.3.2.1.1. It is kind of amusing to see §261 say that “patents shall have the attributes of personal property” and §154 say “such grant shall… end[] 20 years from the date on which the application for the patent was filed…,” as if that were somehow a normal way for personal property to work.

                  I want to quibble just a bit, however, with the assertion “[a patent has the attributes of property] until Congress says it doesn’t.” As the Court noted in McClurg v. Kinglsand, 42 U.S. 202, 206 (1843), “[T]he powers of Congress to legislate upon the subject of patents is plenary by the terms of the Constitution, and as there are no restraints on its exercise, there can be no limitation of their right to modify them at their pleasure, so that they do not take away the rights of property in existing patents,” (emphasis added). In other words, Congress can change almost any aspect of patent law at a whim, but the one thing that Congress does not have the constitutional power to do is to abrogate the property rights in existing patents by legislative fiat.

                3. anon:

                  You are not really thinking this through.

                  Congress does not grant constitutional rights. The Constitution grants constitutional rights. If Congress says, “property X shall be granted full Constitutional privileges,” it only has those privileges until Congress changes it.

                  By bringing in the AIA in to the discussion, I am guessing you are arguing that Congress is estopped from taking it back in perpetuity. Complete nonsense.

                  Gregg:

                  Thanks for the case, Gregg. You’ll admit that is dicta, in fact old dicta? I would argue that Congress could (if not constrained by trade deals) to repeal all patents ala what Parliament did in 1623 in the Statute of Monopolies. But, its a question that we are not likely to ever see answered, at least hopefully!

                4. Greg, read Marbury v. Madison where the Court held that a right for a fix period was the property of its owner.

                5. J, your history is mistaken and perhaps that helps explains your thinking.

                  The Statute of Monopolies rendered illegal all patents other than those for invention within England. It certainly did not cancel patents on trade between England and other countries, for example the patent of the British East India Company that was a primary cause for the American Revolution.

                  Furthermore, the Statute of Monopolies said that the validity of a patent was to be tried in the courts according to common law. As with all trials in common law courts, issues of fact were tried to juries.

                  The Seventh Amendment of the United States guarantees to Americans a right to a trial by jury as it existed at common law. The Federal Circuit has held (In re Lockwood) that the patent owners have a right to a trial by jury before their patents can be invalidated. Despite this right, the Federal Circuit has also held that a patent owner does not have a right to a trial by jury before his patent can be revoked by the PTAB.

                  Now you tell me, which Federal Circuit is better grounded legally and whether the Constitution has any validity at all? Regardless, the Federal Circuit seems to be heavily biased in favor of the big international firms who control Washington, and could care less for those who do not have any real power.

                  Hopefully, a Trump administration does something about the Federal Circuit, a court that has become a menace to any but its clients.

                6. Greg, read Marbury v. Madison where the Court held that a right for a fix period was the property of its owner.

                  Good point, Ned. Thanks for reminding me of that point. That is, of course, distinguishable from a patent, but I think that the analogy still holds good.

                  Thanks for the case, Gregg. You’ll admit that is dicta, in fact old dicta?

                  Agreed, J.

                  I would argue that Congress could (if not constrained by trade deals) to repeal all patents ala what Parliament did in 1623 in the Statute of Monopolies. But, its a question that we are not likely to ever see answered, at least hopefully!

                  Hm, that would present an interesting case indeed, to the SCotUS. I share your hope, however, that the situation never presents itself, and the law on this point remains a matter only of dictum, without a need for it to be transmuted into holding.

                7. Greg,

                  I would go one step further than merely existing granted patents, and attach the same protections to whether or not changes in the law affect patents as property gen erally.

                  Since the property aspect was not discussed (and not changed), that property aspect is a limit on other changes in the laws that Congress may write. Simply put, Congress simply cannot write just any law.

                8. J,

                  By bringing in the AIA in to the discussion, I am guessing you are arguing that Congress is estopped from taking it back in perpetuity.

                  No.

                  I am not saying that they can never “take it back.”

                  I am saying that to do so, they would need to change the direct words, and that did not happen in the AIA (I am saying that you cannot hide elephants in mouse holes).

                  The other part of what I am saying is clear: even Congress cannot pass any law that is may want to. Not when other Constitutional protections become invoked by the previous actions of Congress (for an analogy, think about voting rights – absent at first, but once created, have protections that must be observed).

                9. I am not saying they are not afforded property rights. They are afforded property rights not inconsistent with the title.

                  If Congress changes the title, a priori the nature of the right is changed.

                  Ned:

                  No, the statute of monopolies cancelled all patents but then gave the crown the condition to grant patents on the condition that they are for new inventions. The first section’s title is literally, “All Monopolies… declared void.”

                  Whether they are tried in common law courts doesn’t change that they are only property rights only when they are not inconsistent with the title.

                  Ned, I’ve read your briefs, you present a compelling argument on PTAB, its a tough case. For what its worth, I hope I can write like that one day. But I come out on the other end of the argument. I have to agree with the current law at the Fed Cir, as much as I hate to say it.

                10. J, it might be said that any grant before 1623 was not limited in time or to the first inventor. Thus, void. Thus it is not clear that patents granted before 1623 were for inventions.

                  Making such patents void was, in many respects, like emancipating slaves. Property rights were annulled because they were deemed odious and illegal in the first place.

                  All Monapolies] and all Commissions Graunts Licences Charters and tres patents heretofore made or graunted, or hereafter to be made or graunted to any person or persons Bodies Politique or Corporate whatsoever of or for the sole buyinge sellinge makinge workinge or usinge of any thinge within this Realme or the Dominion of Wales, or of any other Monopolies, or of Power Liberty or Facultie to dispence with any others, . . . F2, are altogether contrary to the Lawes of this Realme, and so are and shalbe utterlie void and of none effecte, and in noe wise to be putt in ure or execucion.

                  Provided alsoe That any Declaracion before mencioned shall not extend to any tres Patents and Graunt of Privilege for the tearme of fowerteene yeares or under, hereafter to be made of the sole working or makinge of any manner of new Manufactures within this Realme, to the true and first Inventor and Inventors of such Manufactures, which others at the tyme of makinge such tres Patents and Graunts shall not use, soe as alsoe they be not contrary to the Lawe nor mischievous to the State, by raisinge prices of Commodities at home, or hurt of Trade, or generallie inconvenient; the said fourteene yeares to be accomplished from the date of the first tres Patents or Grant of such priviledge hereafter to be made, but that the same shall be of such force as they should be if this Act had never byn made, and of none other.

                11. J, you are attempting to hide elephants in mouse holes with your “If Congress changes the title, a priori the nature of the right is changed.

                  Once established (as here), property rights simply cannot be undone by Congress because of the other Constitutional protections that kick in.

                  The “subject to” caveat is not as powerful as you want to make it out to be because of those other Constitutional protections.

                12. Ned:

                  “Letters Patent” covered staples of commerce, not just inventions. Letters patent were issued to give favors from the Crown and also to collect registration fees from those patent holders.

                  While the argument that these monopolies are void because they violated a person’s property rights is interesting, that is some Enlightment-type thinking in the early 17th century when the Enlightment is considered to start in the late 17th century. Not sure if Parliament thought the same way you do, but I’ll have to see if there are some soliloquy by two Lords in the House of Lords on Westlaw. But, considering that patents are for new inventors was granted by the Crown before the statue of monopolies, I’m going to maintain that the privilege originates from the state and not from a natural right.

                  anon:

                  Just because Congress was granted power to grant patents in article 1 doesn’t mean the 5th amendment takings clause applies, or any other amendment, applies. They are not even temporally linked. What Constitutional protections would you say kick in? Sounds a lot like estoppel to me, by the way. And why hasn’t that ever been argued everytime a patent is invalidated by, say, inequitable conduct?

                  I would argue that, because it was enumerated in the Constitution, it wasn’t clear whether Congress had the authority to grant patents without express permission (ala issuing money.) If patents were so clearly a natural right like other property, why was it included in the Constitution when the attitude at the time of the writing of the Constitution very clearly, “rights are implied?”

                13. J,

                  Once made property, the aspects of protecting property kick in.

                  This is not nearly as difficult as you are trying to make it out to be.

                14. J, the reason patents and copyrights are in the constittution is because the founders thought them to be common law rights. The states just wanted them protected at the Federal level.

                  Federalist 43. link to constitution.org

                  Surely, the inventor may keep his invention secret in perpetuity. The law from the days of Rome made it illegal to importune the worker to learn of the secrets of his master. Today, we have trade secret law.

                  But self policing goes only so far, and does not spread information or preserve know how. When Rome vanished, so did what her people knew; the know how of the army, the skill of the artisan; and the steam engine and the battery. All gone.

                  The patent right for 14 years was created in exchange for publication. But the right of the inventor of exclusivity was long recognized.

                15. anon:

                  You’re argument is, once Congress has made something property, it is estopped from changing the nature of the right, because it has conceded that the Constitution controls. That’s absurd.

                  Ned:

                  That seems to talk about the property right to keep trade secrets, not to exclude others from using the same invention.

                16. J, the idea is that a man owns the sweat of his brow no matter if that is the wheat of the field or the know how of the making flour.

                  Recognizing property rights in the wheat was an ancient innovation. Recognizing property rights in the know how that it might be disclosed publicly was the innovation of the Viennese, copied by the English, then by us.

                17. For the second time J, you are not getting my argument correct (and you still are seeking to hide elephants in mouse holes).

                18. anon:

                  I remember my first few posts on this site when you hammered me with the language of statute in section 101.

                  My turn. “Subject to the provisions of this title, patents shall have the attributes of personal property.” 35 USC section 261.

                  If you are going to say that this is a elephant in a mousehole… then where else would this condition be placed? It seems to me that the “elephant” as you call it is exactly where it should be, i.e. right next to the grant of the right.

                  Would you be comfortable if Congress passed a law that said, “subject to the provisions of this title, anon will not be subject to cruel or unusual punishment”? Because if I were you, I would think, “hey, wait, there are conditions that I could be subject to cruel and unusual punishment?

                19. J,

                  You are still ig noring the plain fact that other Constitutional protections kicked in at the onset of the designation as property, and ANY future changes are simply not free to do “whatever.”

                  Your caveat remains far less powerful than you think it to be.

            1. 1.1.1.3.2.2

              Changing to a very different subject, patents, is not relevant to the issue here. Besides which, unlike trademarks, patents are directly provided for in the Constitution, and had completely different historical origins and purposes.

              1. 1.1.1.3.2.2.1

                Respectfully, you did mention what all IP attorneys should know.

                But I take your point that patents and trademarks are different with different origins. My point is that the Lanham Act grants rights and privileges beyond common law trademarks. They are rights granted by the government, and thus must necessarily be regulated by them in which the government may seem fit.

                1. They can do whatever they want to do with their registration system and leave companies to get trademarks through common law. Maybe present some legal authority, or at least legal reasoning.

                2. You are moving goal post and ignoring the facts, J.

                  The legal authority and legal reasoning have already been provided (the Constitution including the Bill of Rights) and the aspects that other Constitutional protections kick in once a first item is created that then constrains further Congressional abilities to make laws concerning that first item.

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