USPTO v. TAM: How is Tam’s speech being abridged by denial of his registration?

First Amendment says: “Congress shall make no law … abridging the freedom of speech.” My question that I still do not understand for the Tam case: How is Tam’s speech being abridged by denial of his registration?

 

130 thoughts on “USPTO v. TAM: How is Tam’s speech being abridged by denial of his registration?

  1. 16

    One of the Trump administration’s very first acts on Monday was to reinstate the Mexico City policy, otherwise known as the global gag rule. The policy prevents giving U.S. funding to international organizations that offer family planning and reproductive health options to women around the world—if those options include talking to women about abortion.

    The rightwinger Drumpf supporterers complaining about government “viewpoint discrimination” in trademarks (LOL!) must be going ballistic about this.

    Right?

    LOL Of course they’re not.

  2. 15

    One would think – from reading the comments on this blog that the vast majority of postings have been against Tam, and that the oral arguments spell doom for his efforts.

    Yesterday, after reading the commentary and the briefs at Scotusblog’s site ( link to scotusblog.com ), the exact opposite conclusion is the only one that can be drawn.

    1. 15.1

      Except that if you read the comments on this blog you would know all about the ScotusBlog write-up already:

      link to patentlyo.com

      Opinions differ; mileage varies! Shocking stuff. I’m sticking with my prediction.

      1. 15.1.1

        Not just that one write-up, Malcolm.

        Trying reading what I actually stated before you seek to denigrate.

        And as for you sticking to your prediction, I am not shocked in the least. Did you bother contemplating any of the points that go against your prediction? Did you understand them?

    1. 14.1

      Maybe the good professor can set up a section of this blog for non-patent “tidbits” for the likes of 6 and Malcolm…

        1. 14.1.1.1

          Your reply “this is trademark” has nothing to do with your post at 14 and my comment on your post at 14.1.

          Sure, this is a trademark thread on a patent blog (the easy link being both are in the IP camp).

          You and Malcolm are not discussing anything related to IP though.

  3. 13

    Its simple. A trademark registration is a substantive right, similar to a welfare check, a social security check, or the registration of your deed at the county recording office. The government is not obligated to provide any of these things to the public. However, they all have significant monetary value.

    Similar Supreme Court Cases:

    Rosenberger v. UVA: University cannot withhold funding for a student organization based on it being religious.

    Legal Services Corp. v. Velazquez: Congress cannot bar a taxpayer funded free legal services center from serving clients who advocating changing welfare laws.

    Agency for Int’l Dev. v. Alliance: Federal funding of AIDS prevention cannot be conditioned on content of advocacy.

    Speiser v. Randall: Tax exempt status cannot be conditioned on an oath.

    The examples are endless. All government-supporting cases turn on the government being able to show that its standard is viewpoint-neutral. The government has halfheartedly argued that “disparagement” is such, but not convincingly.

    1. 13.1

      There are two camps of people who claim to support “freedom of speech” under the Constitution.

      A. Those who uphold the freedom of any speech regardless of content.
      B. Those who support the freedom of only certain speech, the content of which they agree with and/or approve of. The simplest example is adopting the view that “good” speech is protected and “bad” speech is not.

      Does the Government’s “halfhearted” argument (as you refer to it), rely on an implicit tendency of the Court toward camp B?

      1. 13.1.1

        A. Those who uphold the freedom of any speech regardless of content.

        Which is pretty much nobody, when the rubber hits the road. Yelling “fire!” in a crowded theater and all that.

        This is why the basis for speech-limiting law/regulation matters.

        1. 13.1.1.1

          Which is pretty much nobody, when the rubber hits the road. Yelling “fire!” in a crowded theater and all that.

          Would make a great commercial for the line of non sequitur Geico commercials…

          But in context here? Rather meaningless.

          1. 13.1.1.1.1

            The “context” is a comment stating there were two camps of people with opinions about the First Amendment. Unfortunately, one of the camps doesn’t actually exist.

            Can someone please go to the Star Wars Superfans website and find some better tr0lls? Thanks in advance.

            1. 13.1.1.1.1.1

              The statement of “Unfortunately, one of the camps doesn’t actually exist.” is not only self-evidently incorrect, it has nothing to do with your “yelling fire in a crowded theater” non-sequitur.

            2. 13.1.1.1.1.2

              …and your implied comment about the Quinn website once again reveals your rather odd obsess10n with the man.

              What is up with that? There is nothing here related to Mr. Quinn or his website, and yet YOUR thoughts are still about him.

              1. 13.1.1.1.1.2.1

                implied comment about the Quinn website /i>

                Furthest thing from my mind, actually.

                But I must say you do some fantastic work protecting him from terrible “enemies” like me. Good boy! Now run back to your mentor and tell him about this. He’ll throw a little “anon”-y snack on the floor for you to munch on. YUM

                1. Furthest thing from your mind?

                  Really?

                  Which patent blog do you have on your mind with “someone please go to the Star Wars Superfans website and find some better tr0lls?

                  Do tell.

                  As for “protecting” once again you mistake my knocking you with something else.

                  You seem to have a really difficult time with the concept that YOU might be doing something amiss.

                  So very Trump of you.

                2. Malcolm – this does not support your post.

                  There is zero tie to your anti-patent “need better Tr011s” meme

    2. 13.2

      its standard is viewpoint-neutral.

      It is viewpoint-neutral.

      The government has halfheartedly argued that “disparagement” is such

      There’s been no remotely compelling evidence that the standard is not viewpoint neutral. Why would the government need to make more than a half-hearted argument given these facts?

      Rosenberger v. UVA: University cannot withhold funding for a student organization based on it being religious

      Not the topic being discussed, but this kind of a holding is an unfortunate quirk of America’s historically boundless affection for the worship of a particular flavor of invisible sky daddies, regardless of what the First Amendment says.

      1. 13.2.3

        Can you elaborate on how the disparagement test, that a mark is derogatory to a substantial composite of the referenced group, is viewpoint neutral? I do not follow you there.

        1. 13.2.3.1

          Can you elaborate on how the disparagement test, that a mark is derogatory to a substantial composite of the referenced group, is viewpoint neutral?

          Because “the referenced group” would likewise be denied a registered mark if, e.g., they retaliated by filing a mark that disparaged the applicant in your hypothetical. In other words, everyone’s disparaging trademarks are treated the same. Everyone’s obscene trademarks are treated the same. Everyone’s scandalous trademarks are treated the same. They are all denied registration.

          1. 13.2.3.1.2

            We like Asian-Americans!
            versus
            We like slants!

            The first, presumably, would be fine – see, e.g., 86683465 4944718 ASSOCIATION FOR ASIAN AMERICAN STUDIES.

            The later would not be (as the assistant S.G. argued).

            That means the regulation is content-based (must look to the content to determine whether it survives the regulation; this is all of TM law though) and viewpoint based (the objective understanding of slant is derogatory – it is singled out as a viewpoint (negative) vis a vis a viewpoint that is non-negative (Asian-American).

            Therefore, view-point based regulation.

            1. 13.2.3.1.2.1

              Malcolm is dissembling and wants the “viewpoint” comparison to be one disparagement against another.

              He avoids the fact that any disparagement must be “figured out” content wise against similar family type content in order to first determine whether or not is IS considered disparaging.

              His lack of ethics or intelligence or inte11ectual honesty or all of these will prevent him from seeing – let alone responding – to your actual point, slaffles.

          2. 13.2.3.1.3

            “Because “the referenced group” would likewise be denied a registered mark if, e.g., they retaliated by filing a mark that disparaged the applicant in your hypothetical. In other words, everyone’s disparaging trademarks are treated the same. Everyone’s obscene trademarks are treated the same. Everyone’s scandalous trademarks are treated the same. They are all denied registration.”

            I heard the other day that the Deploraball guy that runs the Deploraball trademarked “Deplorable Nation” or similar. There are many that would find that disparaging, but he got his trademark registered.

          3. 13.2.3.1.4

            There is no group that would retaliate with a mark offensive to Tam, so even taken in the best possible light, your standard fails.

            Your standard is merely one of rewarding the most easily offended groups that are currently in vogue with TM examiners.

            1. 13.2.3.1.4.1

              i.e., Heckler’s Veto.

              (Prized by the PC crowds, as long as they – like Malcolm – pretend that the rules do not apply to them)

  4. 12

    I really have to wonder just how much of the resistance to the government here is grounded in the symbolic loss it might represent to the Washington Redskins and the “defenders” of “white western Xtian civilization” (aka “the greatest thing that ever happened to the planet”).

    Actually I don’t have to wonder about that at all. Nobody does. One thing I can pretty much guarantee, though, is that nobody here was (or is) going to change their “views” about Asian-Americans based on the registration status of this band’s silly name.

      1. 12.1.1

        “…because the Slants are defenders” of “white western Xtian civilization”…”

        Funny enough, they are in their own round-about way. White western christian hetero cis civilization isn’t only composed entirely of white people. There are vast vast vast numbers of POCs who are entirely 100% white western christian hetero cis civilization in terms of their culture. And there are still more vast numbers of asians, say in S Korea/Japan, and emerging in China and Vietnam etc. that are also white western christian hetero cis civilization with a variety of eastern/asian themes on top. That is precisely why Japan and S Korea are the powerhouses they are.

        1. 12.1.1.1

          , they are in their own round-about way

          In your effort to find some mythological “round-about,” you have veered deeply into the weeds and never do find your way back.

  5. 11

    Could you imagine a regime that awarded trademark registrations (or patents) only to Republicans?

    That’s actually pretty easy to imagine in light of the fascist tendencies of the modern Republican party.

    Next I suppose you’ll ask me if I can imagine a regime where the Federal government actively encourages the suppression of Democratic votes and threatens every form of dissent with litigation, violence and jail.

    Trust me when I say that you haven’t seen anything yet.

    1. 11.1

      Ok MM:

      Given your responses below I’d like you to honestly address the following hypothetical.

      Suppose the Copyright act is amended by Congress to include a provision denying registration of any mark which:

      “contains any reference to the Jewish faith, Jewish cuisine, Jewish culture, Jewish people, or anything Jewish in particular, whether promotional, derogatory, or otherwise.”

      Now, assuming this provision applies equally to Jewish and non-Jewish persons, Atheists, women, everyone and anyone regardless of religion, race, creed, gender, sexuality, politics, etc. i.e. no one is allowed to register the mark.

      IS there anything unconstitutional in such a law? IF so, WHY is it unconstitutional?

      IF it is NOT unconstitutional, other than a veto by the President, what would serve to stop such a law from being passed by Congress?

      1. 11.1.1

        Suppose the Copyright act is amended by Congress to include a provision denying registration of any mark which:

        “contains any reference to the Jewish faith, Jewish cuisine, Jewish culture, Jewish people, or anything Jewish in particular, whether promotional, derogatory, or otherwise.”

        Suppose you tell me why Congress is doing this in your super awesome hypothetical. Your question might answer itself in that instance. Go ahead and let everyone know why Congress decided not to register a mark that “refers to anything Jewish in particular” (whatever that’s supposed to mean).

        Remember: we’re talking about trademarks. We all know that you rightwing faux-libertarian quasi-anarchist types are obsessed with “PC culture” and everywhere you look you see your magnificently fresh white “views” being “oppressed” by the government somehow. Try your best to overcome that and deal with the real world. Good luck. I especially look forward to your joining me in my endless campaign to get the inane and offensive phrase “In God We Trust” off our currency and everything else the government slaps it on.

        And by way of reference to the comment you’re responding to (where I quoted another hypothetical far, far away from the facts at issue here), be aware that “denying one political party a Federal trademark registration because … it’s that one political party” is pretty much the furthest thing both from what the statute says and also the facts in the particular case at issue. What can’t be denied is that when the gates are open to Federal registration of disparaging, scandalous and immoral and/or obscene marks, then marks in those categories are going to be registered immediately because the trademark office is, right now, continually being asked to register them.

        And, lastly, just in case you’re still intent on missing the entire point here: this case isn’t about “the free expression of ideas” at all. It’s about the Federal registration of trademarks, marks whose only purpose for existence is to minimize consumer confusion about the source of goods and services. There is no discrimination against “views”. There is only a prohibition against Federal registration of an *insult*. You can’t seriously be concerned about “free expression” and simultaneously be whining and stamping your feet non-stop — as you do — that we need to put the right to control information into private hands using the IP system. That’s absurd, and you’re absurd.

        1. 11.1.1.1

          LOL! ok now… such anger for so simple an example.

          Reading between the lines of your XX, your answer is that it would NOT be unconstitutional and that as long as Congress decided to enact it nothing would stop it from becoming the Law of the land (other than a veto by the president)?

          1. 11.1.1.1.1

            ok now… such anger

            I’m not angry at all. The bolding at the end was because the formatting tag didn’t get closed. Apologies.

            your answer is that it would NOT be unconstitutional

            LOL. No, that is not my answer. My answer is that if you can’t even be bothered to give me a rational basis for your silly hypothetical law, it’s a waste of time to address the First Amendment issues.

              1. 11.1.1.1.1.1.1

                Noted…?

                It’s one of his trademarks.

                (of course, his number one trademark is Accuse Others Of That Which Malcolm Does – which should surprise no one)

        2. 11.1.1.2

          We all know that you rightwing faux-libertarian quasi-anarchist types are obsessed with “PC culture”

          That “we” is anyone outside of Malcolm’s “one bucket” mentality, which basically means Malcolm, Scooby Don’t and the multitude of sockpuppets (and any other mindless PC sheep out there).

          So much for the notion of diversity – very animal farm in the “diversity” allowed in the PC ranks.

          1. 11.1.1.2.1

            So much for the notion of diversity

            I would love to seem some real diversity. Unfortunately there isn’t a whole lot of that on the patent maximalist side. It’s 95% (at least) rich white guys whining about subject matter eligibility. And most of the loudest (and wrongest) whiners are Republican/faux-libertarian types.

            What’s funny is that anyone would find this correlation the least bit surprising.

            1. 11.1.1.2.1.2

              “I would love to seem some real diversity. Unfortunately there isn’t a whole lot of that on the patent maximalist side. It’s 95% (at least) rich white guys whining about subject matter eligibility.”

              With all the influx of asian applicants these days I’m curious why there aren’t hordes of asian dudes that are also included in your analysis? Do they just never speak out? Or are they not on the “patent maximalization” side?

        3. 11.1.1.3

          ” we’re talking about trademarks. We all know that you rightwing faux-libertarian quasi-anarchist types ”

          Lol wut? Who is a rightwing faux-liberatarian quasi-anarchist?

          ” and everywhere you look you see your magnificently fresh white “views” being “oppressed” by the government somehow.”

          Who says that “white ‘views'” are being “oppressed” by the gubmit?

          You’re a clueless old boomer that can’t even understand the culture that underlies the whole discussion. Much less can you understand the arguments going on right now.

  6. 10

    In reality, all the trademark grant would do is permit TAM to block others from exercising their freedom of speech.

      1. 10.1.1

        Yet another who does not understand how a trademark would actually be enforced…

        And you were already schooled on this topic with a recent real world example. You’re coming back for me? At least wait for the slapmark to disappear.

  7. 9

    Dennis:
    I think the chilling effect on the marketplace of ideas makes it first amendment “speech” – discourages one type of speech over another by offering government benefit to one and not another.

    The real questions: Is this a limited public forum or a classic public forum (and how to square that with the governmental programs cases). I think clearly, it is limited public forum/ governmental programs. Tam’s lawyer’s unwillingness to concede that TM law is not classic public forum was, IMO, a mistake.

    I understand if someone wants to argue that it is not “content neutral” – but the entirety of trademark law is content based. So that doesnt really help.

    Since we are in a weird section of 1st amendment law (close to libel/slander/ etc) the test should be whether the law serves property’s purpose. (Property in this case being the government program).

    Here is where the Government’s lawyer tried to argue that Congress decided that marketplace identification works best with positive (instead of negative) trademarks.

    We’ll see I guess. Neither side really convinced me though.

    I also feel like the Justices were really skeptical of strong 1st amendment protections for this speech or, better stated, this case must be decided carefully if they agree with the CAFC because a broad holding may upset economic regulations that have, historically, been completely fine, see, e.g., the credit card charges case currently pending as well (although that case has a far more serious capability of causing issues with economic regulations).

    1. 9.1

      I think the chilling effect on the marketplace of ideas makes it first amendment “speech”

      Except that there is no “chilling effect on the marketplace of ideas” when you deny registration of a Federal trademark. None. Nada. Zero.

      On the contrary, the “chilling effect” occurs when the mark is registered and now anyone who uses the disparaging term has to worry about sued for being trademark infringement.

      Do you have any other arguments? Because the one you just made is d.o.a.

      1. 9.1.1

        As an admittedly extreme example, suppose the government could deny you police protection for your speech. You could still say whatever you want, but the government would clearly be against that type of speech. Would that type of law pass muster?

        1. 9.1.1.1

          suppose the government could deny you police protection for your speech

          I’m not sure what means. The police don’t protect my speech. They protect *me* from being harmed by criminals (in theory, anyway).

          On what rational basis is the government legally denying “me” (as opposed to someone else) this “protection”?

        2. 9.1.1.2

          [S]uppose the government could deny you police protection for your speech… Would that type of law pass muster?

          I do not have a case to cite, but I feel fairly certain that would not be constitutional. That is a very different set of facts than here, however. If the police will not close the roads for your parade, for example, then the parade will not happen. You really are being denied an ability to speak.

          By contrast, if Tam’s mark is not registered, he can (he already does) still use the mark in commerce. No speech is actually stopped, either in theory or practice.

          1. 9.1.1.2.1

            As pointed out previously, you are ig noring the chilling effect vis a vis the selective (and that selectivity directly bearing on government content-specific choice) awarding of legal and financial protections.

            I do wonder why you try so hard to ig nore these points. Are you that PC-blinded?

    2. 9.2

      Tam’s lawyer’s unwillingness to concede that TM law is not classic public forum was, IMO, a mistake.

      Except that the entire theory of Tam’s case rests on that proposition. Tam insists that the First Amendment entitles him to Federal registration of any trademark he dreams up.

      Either the government can decide that it won’t register your “Trump is a Ment@lly Ill Sociop@th Pile of Sh-t” because it’s disparaging and obscene and the marketplace (of THINGS and SERVICES, mind you, not “ideas”) is better without that, or the government can’t make that decision because boo hoo hoo hoo we need Federal support of disparagement and filth at every microlevel of government because there’s not enough out there already.

    3. 9.3

      Tam’s lawyer’s unwillingness to concede that TM law is not classic public forum was, IMO, a mistake.

      Hm, I do not think that this is a fair characterization of Connell’s remarks. Justice Kennedy suggested that TM registration should be viewed as just like a public park, and Connell agreed. Then Justice Kagan pointed out all of the ways that TM registration could not possibly be treated like a public park, and Connell also agreed. That seems to me a “conce[ssion] that TM law is not [a] classic public forum.” He did not rush to make that concession, but he made it all the same when pressed.

      1. 9.3.1

        Connell agreed with Kennedy’s characterization of Connell’s position. And then he didn’t.

        Probably it’s best if you make up your mind ahead of time about what points you’re willing to concede. I think Kennedy’s point was predictable and I think Connell had his answer prepared.

  8. 8

    How is Tam’s speech being abridged by denial of his registration?

    It’s not.

    As the Supremes recognized, trademarks are not “speech” and they were never intended to be used as vehicles to promote speech. The purpose of marks is to avoid consumer confusion. It is, in fact, the granting of invalid marks which has a far more chilling effect on free speech.

    Secondly, Tam is perfectly free to call his band The Slants, he’s perfectly free to talk all he wants about The Slants and he’s perfectly free to collect the data that will never exist which shows that he’s “taken back” the anti-Asian slur “slant eyes”.

  9. 7

    I think it is often forgotten that government provided benefits have had their battles with the First Amendment before (probably what Anon was referring to in the comment to take a first amendment teacher out for coffee and pizza). To me, there are significant benefits to being registered on the Federal Registry, such as nationwide notice and prima facie evidence of incontestability to avoid litigation and make protection cheaper against infringement. It is likely these benefits are the reason why, as Tam has pointed out, record labels refuse to deal with bands that do not protect their brand with federal trademark protection. The Court has previously stated in Speiser v. Randall that “to deny [a benefit to those] who engage in certain forms of speech is in effect to penalize them for such speech” concluding that its deterrent effect on the speech was like a fine. In Simon & Schuster, the Court thought a statute was inconsistent with the First Amendment if it imposes a financial burden on speakers according to the content of their speech. The Court’s rational was “the governments ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas and viewpoints from the marketplace.” Although these cases are not directly on point, they form the backbone that when the government confers a benefit on certain types of speech as opposed to others that imbalance may impinge the First Amendment. As Anon2 pointed out in the example, the government through its disparaging content sword is driving certain ideas and viewpoints from the marketplace because non-federal trademark protection doesn’t cut it in the modern globalized business world. If non-federal protection was adequate, why would cost sensitive and saavy businesses not rely on these cheaper protections? I mean c’mon…just look at the growth of federal trademark applications from about 100,000 in the early 90s to around 400,000 today; clearly there are substantial benefits to the federal program.

    1. 7.1

      record labels refuse to deal with bands that do not protect their brand with federal trademark protection

      As stated, this is a complete lie. Most records that are released by bands are associated with a record label. I would estimate that less than 1% of those bandnames are registered trademarks. I wouldn’t be surprised if the actual number is less than 0.1%.

      There is a big difference between a great band that is releasing some music, on one hand, and a talentless attention-craving PR stunt man like Tam whose music is the sonic equivalent of broken glass-encrusted t0ilet paper.

      1. 7.1.1

        Why would that be a complete lie? You think a record label who signs an up and coming band known for its name wants another band hijacking the brand recognition and goodwill? There is a whole trademark international class dedicated to entertainment that contains thousands of bands. A pretty simple USPTO trademark search confirms that.

        1. 7.1.1.1

          Why would that be a complete lie?

          Because it’s false, as I just explained to you.

          You think a record label who signs an up and coming band known for its name wants another band hijacking the brand recognition and goodwill

          No, but there’s other legal ways to prevent that from happening without Federal registration including … trademark law. The bigger point, however, is that record labels release records by bands all the time — every day! — without giving any thought whatsover to Federal trademark registration. And the world continues to turn and the label and the band is perfectly happy.

          There is a whole trademark international class dedicated to entertainment that contains thousands of bands.

          That’s nice. I never suggested otherwise. Also it doesn’t change the fact that you’re earlier statement was false, as I already explained.

    2. 7.2

      In Simon & Schuster, the Court thought a statute was inconsistent with the First Amendment if it imposes a financial burden on speakers according to the content of their speech. The Court’s rational was “the governments ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas and viewpoints from the marketplace.”

      Whatever that case was about, it has nothing to do with what’s going on here.

      There is precisely ZERO chance that Tam’s “ideas” (as half-baked as they are) or anyone else’s — as represented by a silly disparaging or obscene trademark — are going to be “driven from the marketplace” by failing to place them in the Federal registry.

      Why is that?

      Because trademarks aren’t “speech.” Trademarks aren’t intended to be used to communicate any “ideas” other than to indicate the source of goods to consumers.

      the government through its disparaging content sword is driving certain ideas and viewpoints from the marketplace

      No ideas or viewpoints are being “driven from the marketplace” by failing to register a trademark. None. Nada. Zero. I’m not going to even ask for evidence to the contrary because you have none, and you never will have any.

      1. 7.2.1

        Commercial speech is speech that proposes a commercial transaction. Do trademarks or marks generally propose a commercial transaction? Yes. They advertise to consumers. You even admit they advertise by stating they indicate a source of goods to consumers. Do they contain elements common to expressive content found in speech such as symbols, words, pictures, and color? Yes. Whether marks are speech is not the debate. The Court and every law journal under the sun has agreed on this topic. The Court explicitly stated in Friedman v. Rogers that trade names were commercial speech and footnoted that they are vital speech. The guru of trademarks, McCarthy himself, wrote “it would appear that a company’s trademark is the most important element of commercial speech which is communicated to consumers.”

        1. 7.2.1.1

          Whether marks are speech is not the debate.

          Whether marks are speech entitled to the full scope of First Amendment protection is, in fact, the entire debate.

          Commercial speech is a limited type of speech.

          Trademarks, assuming for argument that they are “speech”, are a very very limited type of speech. Nobody has a Constitutional right to a trademark of any kind, much less a Federally registered one. It’s an abstraction created by the government, for a purpose defined by the government.

          1. 7.2.1.1.1

            Nice non sequitur – and entirely misses the point because whether or not anyone has any trademarks is a red herring the size of a blue whale.

  10. 6

    Does US RTM law include a provision that use of a trademark (by A) that is the subject of a not invalid TM registration owned by A cannot infringe the rights which B enjoys by virtue of B’s own not invalid TM registration?

    If it does, then denial of registration is to deny A a defence to accusations by B of TM infringement. Without that defence, B can go ahead and enjoin A and thereby stop use by A of its TM.

    Hence, denial of registration might constrain A’s freedom to use its TM.

  11. 5

    Good question. I say that his speech rights are not abridged.

    Incidentally, I just downloaded the oral argument audio last night and had a listen. The gov’t made a great deal of Walker in its briefs, but hardly touched that case in its oral arguments—not until rebuttal, and then only at the end. It was Justice Kagan who really made the Walker argument for the gov’t. That is, in my opinion, the gov’t’s strongest argument, so the fact that they could not be troubled to articulate it until the argument was almost over was a big mistake.

    Also, I counted two separate occasions when a justice mischaracterized the gov’t’s argument (the Chief though that the gov’t was contending that “Slants are Superior” would not be disparaging, although S.G. Stewart had clearly just said that the PTO would deny such a reg app as disparaging, and Justice Alito near the end took the gov’t’s argument to be that registration should be denied lest the Primary Register offend a foreign gov’t, although S.G. Stewart said nothing of the sort). In both instances, rather than clarifying that the justice had misunderstood, the S.G. started stammering to defend the argument that had been mistakenly ascribed to him.

    Tam’s lawyer made some mistakes, but nothing as glaring as those mistakes of the S.G. If the SCotUS ends up affirming here, I will put it down much more to bad lawyering than to a bad case.

    1. 5.1

      Walker may be the Govt’s best argument, but it strikes me as a weak one. Why would anyone think that the Govt is speaking, or endorsing speech, merely because it registers a trademark. The Govt routinely registers marks for numerous competitors in the same field (Nike, Adidas, Puma, Converse).

      Even for politically motivated groups, marks for widely divergent groups are registered. NATIONAL RIFLE ASSOCIATION and BRADY CAMPAIGN TO PREVENT GUN VIOLENCE are both registered service marks. Same for PLANNED PARENTHOOD and RIGHT TO LIFE.

      Hard for me to see how merely registering a mark turns it into Govt. speech or endorsement.

      (The publication in the PTO register, mentioned at oral argument, is merely to alert the public that someone is trying to register that mark for the goods or services listed. Others who might wish to object have 30 days to file an opposition. All the publication means is that these applications have gone through the process, and if no one objects within 30 days, the PTO will register the mark.)

      1. 5.1.1

        Why would anyone think that the Govt is speaking, or endorsing speech, merely because it registers a trademark.

        I do not really disagree with this point, but I will flip it around: why would anyone think that the gov’t is speaking or endorsing speech, merely because the gov’t prints a license plate with a particular group’s message? I expect that everyone knows that the “Choose Life” plates that we have here in Missouri are a reflection of the car owner’s viewpoint, or of a viewpoint of the group to which the car owner belongs, rather than an expression of the Missouri Dept. of Revenue’s viewpoint. And yet, the Court held that making the state print the license plate came close enough to putting words in the gov’t’s mouth, so the gov’t was allowed to pick and choose which messages it would put on license plates.

        Mutatis mutandis, the same is true of the Principal Register. I agree that probably no one thinks that the gov’t chose the Nike words “Just Do It,” in exactly the same way that no one thinks that the state of Missouri chose “Choose Life.” To make the federal government print those words on the Principal Register, however, is close enough to putting words in the gov’t’s mouth.

        The publication in the PTO register, mentioned at oral argument, is merely to alert the public that someone is trying to register that mark for the goods or services listed.

        Fine. And printing messages on license plates is “merely” to alert the public that the bearer supports some organization. I do not see how explaining the purpose of the government action saps the force of the government speech argument.

        1. 5.1.1.1

          Your comments only point out the weakness of the Walker opinion, which was 5-4. I would have voted with the dissent.

          But that said, the majority relied on three points: (1)Texas and other states have long used license plates to convey messages; (2) the public associates license plates with the State; and (3) Texas maintains direct control over the messages on its specialty plates from design to final approval. There is nothing like that for TMs.

          Walker, it seems to me is the very edge of Government speech. TMs are much less associated with the govt. than messages on license plates.

          1. 5.1.1.1.1

            Your comments only point out the weakness of the Walker opinion, which was 5-4.

            Fair enough, but Walker is the law. And Scalia was in the dissent, so now it would be 5-3 instead of 5-4.

            As for your arguments that Walker is not analogous, I concede the points you are making. Tam stands on some of the same legs as Walker, but I concede it is not on all fours. I guess we will see whether Tam is analogous enough to Walker to merit reversal.

            1. 5.1.1.1.1.1

              Yes. But but the grant of a vanity plate with whatever message an individual wants is quite different from a conferred benefits prospective. With a registered trademark, the government confers an presumptive exclusive right to use, incontestability, simplified foreign registration channels, registration presumptions if you are trying to build a portfolio around a house mark, etc. A license plate lets me speak a set amount of alpha-numerical symbols in a set position on the bumper(s) of my car. That is a pretty confined set of parameters without an imbalance of legal rights if I do or do not get the vanity message I desire.

              1. 5.1.1.1.1.1.1

                Two points:

                (1) Just to be clear, Walker was not about vanity plates. It was about those specialty plates where the look of the plate is different from the run-of-the-mill state plate (usually for supporters of various state universities, but also for particular civic organizations like the Masons or social fraternities or various charitable causes like child-abuse prevention or homeless pet shelters).

                (2) As above, I concede that license plates are not exactly like trademark registrations. The reason why Texas was able to refuse a Sons of Confederate Veterans themed plate, however, was that the Court considered that requiring Texas to print such a plate would be, as it were, putting words in Texas’ mouth. Requiring the PTO to publish “*$%# the Police” in the Gazette or the Principal Register would be putting words in the federal government’s mouth in much the same way as the license plates put words in Texas’ mouth.

                Please understand that I realize that it is not really putting words in Texas’ mouth. I expect that most people understand that Texas does not endorse the Sons of Confederate Veterans or promulgate any slogan that the SoCV might put on the specialty plate that they had in mind, but that does not matter. It is still Texas’ “letterhead” (so to speak) and Texas does not have to make that letterhead available to all comers. They are free to pick and choose who they will let use their “letterhead” according to the message to be printed on the “letterhead.”

                Please also understand that I realize that denying a trademark registration comes at more cost to the one denied than does denying a specialized license plate class. However, for better or worse, this point does not come into the Walker analysis. Mr. Benschar already enumerated the points relevant to the Court’s analysis in Walker, and hardship-to-the-one-denied was not in that list.

                1. Not only are they not “exactly like,” they are critically different.

                  They belong to the state.

                  No one is suggesting (and in fact it would be ludicrous to do so) that trademarks belong to the state.

                  Does the state pay to enforce them?

                  It seems shocking the degree to which people desire to inject PC into this issue.

                2. My apologies. I consider group personalized plates and individual personalized plates all part of the vanity plate genus, but with that said it is irrelevant in the analysis. I guess I am more interested in how the Court would arrive solely at the Walker test. I mean my thinking was that the First Amendment roadmap would be:

                  1) Is this speech?
                  2) What type of speech?
                  3) Has the speech been regulated?
                  4) In what forum has the speech been regulated?
                  5) In what manner has the speech been regulated in that forum?

                  And correct me if I am wrong, but even in a government forum or non-public forum the speech regulation must be viewpoint neutral in terms of its application. So theoretically if it is speech and regulated in a viewpoint discriminatory manner why is Walker at play? Because the disparagement test (that the mark be disparaging (derogatory) to a substantial composite of the reference group) inherently has account for the viewpoint of the message. It seems like textbook viewpoint discrimination because the government uses its power to advance one person’s opinion over another’s with regard to the belief that a substantial group of people would find something derogatory.

                3. I consider group personalized plates and individual personalized plates all part of the vanity plate genus, but with that said it is irrelevant in the analysis.

                  I expect that the distinction is irrelevant for our purposes, but I imagine that it could be controlling in other circumstances, which is why I wanted to clarify. I apologize, however, if the clarification veers over into the niggling and pedantic.

                  [C]orrect me if I am wrong, but even in a government forum or non-public forum the speech regulation must be viewpoint neutral in terms of its application.

                  I do not believe that is a correct assertion of the law. It is my understanding that the government does not have to be viewpoint neutral in government speech cases.

                  “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says… Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.” Walker v. Sons of Confederate Veterans, 135 S. Ct. 2239, 2245 (2015)

                  “We have therefore refused to hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals,” (internal quotations omitted). Id. at 2246.

                4. Thanks. See I read that to be that a government forum does not have to be content neutral which I thought was different from viewpoint neutral. I think the Court somewhat conflates the concept of content neutral and viewpoint neutral. Historically content is the message and viewpoint is the position taken by speaker – subtle, but generally different. Then, the Court concludes by saying additionally they refuse to hold that the funding the program in Walker viewpoint discriminatory. It does not read to me that the government can discriminate in terms of viewpoint in a government forum.

                5. It does not read to me that the government can discriminate in terms of viewpoint in a government forum.

                  I must be missing something of what you are trying to say, because this does not make sense to me. I quoted you where the Court said “[w]e have therefore refused to hold that the Government unconstitutionally discriminates on the basis of viewpoint…” (emphases added). That looks for all the world to me like they said that it is not unconstitutional to discriminate on the basis of viewpoint in a government speech case.

            2. 5.1.1.1.1.2

              I guess I am saying that you can have a content-based restriction in a government forum; they do not want license plates that are drug-related. However, you still cannot have a content based restriction that discriminates against a viewpoint like only allow messages with the viewpoint that drugs are bad. Walker held that they did not cross the line into the viewpoint zone so their content based restriction was acceptable in the government forum. But then again with regards to the law everything is open to interpretation and my interpretation is probably one of many.

              1. 5.1.1.1.1.2.1

                But they wrote “viewpoint.” If you are drawing a distinction between viewpoints and content, then why are you reading “viewpoint” in that quote to mean “content”?

                1. Why are you insisting a trademark is owned by the government when its very existence is the epitome of NOT belonging to the government (hence, source of whatever good/service the trademark is affixed to.

                  Niggling and pedantic would be too kind for this type of “oversight.”

                2. No. There is a distinction in First Amendment jurisprudence. It is not merely me drawing one. My thought is that Walker stands for the principle that if there is enough government control where people would likely think the government is speaking (your letterhead example, which was a great metaphor), the government can express a viewpoint at the exclusion of others. The first paragraph you quoted me is from Rust v. Sullivan where the Court even more explicitly stated that “the Government has not discriminated on the basis of viewpoint.” There has not been a case, to my knowledge, permitting the government’s view to be discriminatory (e.g., printing F#%* the Sons of Conderate Veterans on a license plate). Until there is one, I do not think we will know if the government has carte blanch permission to discriminate with its viewpoint. The Court in Walker, to my knowledge, made no finding that the government’s viewpoint it expressed with its control of the government program was discriminatory. The Court when they mentioned viewpoint in your later quote refused to hold that there was viewpoint discrimination in the Walker circumstances. Essentially, it becomes much harder to discriminate on the basis of viewpoint when you are the speaker and the regulator.

                3. Essentially, it becomes much harder to discriminate on the basis of viewpoint when you are the speaker and the regulator.

                  Well said – and leads to the point that I provided Greg several times now, and for which he deigns to not reply to: the government is not – and cannot be – the speaker, based on the very nature of what a trademark is.

                4. My thought is that Walker stands for the principle that if there is enough government control where people would likely think the government is speaking (your letterhead example, which was a great metaphor)…

                  But that is the Trademark Office’s argument here—that the Gazette and the Principal Register are just as much their “letterhead” as the license plate was Texas’ “letterhead.” It is not unconstitutional for the Trademark Office to say “we will let Nike use our letterhead, but not the Slants” merely for the reason that the Congress considers that the use to which the Slants mean to put the “letterhead” is distasteful.

                5. I can see the point that Greg is making, but my thinking still leans me towards Anon’s camp. My apologies if this was clear already, but here is how I see it:

                  The asserted speech = “the slants” (mark)
                  Regulation of speech = denial of federal trademark benefits (i.e. denial of registration)
                  Forum = Federal Registry

                  So the question is by the Walker test is the Federal Registry a government forum such that the pubic thinks the speaker of the message “the slants” is the government? Without a doubt, as Greg identifies, the Gazette and the Federal Registry are government controlled. But for Anon, and me, we find that this is a weak argument beyond that point because a mark indicates the source (speaker). Therefore, it would violate the very concept of a trademark because consumers would think the government is the source of every mark on the registry. We all know when we see “I’m loving it” that we do not think that the government is loving it, but rather McDonalds. Furthermore, the government does not play much of a role in terms of controlling the mark, besides the initial gate keeping. They do not control how you use the mark in commerce. They are a passive system that relies on other mark users to later cancel, oppose, or raise issues of confusion. In other words, they do not tell you to put your trademark on the rear bumper of your car to identify your goods/services. I think the government has elements of control, but the public will not associate “the slants” with the government if it is on the Federal Registry. Honestly speaking, that is like saying the public knows the difference between the TM symbol and the (R) symbol – and my experience says otherwise – because it is implying the public would be able to identify when the government is associated with a mark and when it is not.

                  As we discuss this topic, what I think is confusing is that the legal situation lends itself to think that the speech may be the Federal Registry. However, to frame the issue in this way removes Tam from the equation as though he is trying to become a speaker rather than already speaking. He is trying to continue speaking, “the slants,” in a different forum that is now preventing him.

                6. Tam… is trying to continue speaking, “the slants,” in a different forum that is now preventing him.

                  Correct. Tam is already speaking, and will continue speaking for as long as he cares to do so. The one place that he is not presently speaking is the PTO’s “letterhead,” but that is precisely the one forum that Walker tells us the government is permitted to prevent him from speaking. Tam can use his own letterhead to send his message. He may not, however, borrow the Trademark office’s letterhead (even though the Trademark office is content to loan its letterhead to hundreds of other speakers).

                  Without a doubt,… the Gazette and the Federal Registry are government controlled. But… this is a weak argument… because a mark indicates the source (speaker). Therefore, it would violate the very concept of a trademark because consumers would think the government is the source of every mark on the registry.

                  No, this is not the argument being advanced. I am not arguing that consumers mistakenly read “I’m Lovin’ It” in the Gazette as the Trademark Office’s own speech. I freely concede that everyone knows that McDonald’s, not the PTO, is the one saying “I’m Lovin’ It.” The argument here is not that consumers are confused into believing that the government is saying “I’m Lovin’ It” or “The Slants.” Consumers, after all, do not read the Gazette or the Principal Register, so there could hardly be occasion for them to make such a mistake.

                  Similarly, as I mentioned above, I doubt that anyone in Texas would be confused as to the import of the Sons of Confederate Veterans license plates. Everyone understands that the slogan on the plates is the SoCV’s slogan, not the state’s slogan. Still and all, if the state does not approve of that slogan, it need not loan out the letterhead for the slogan’s dissemination.

                  The argument being advanced is that by loaning its letterhead, the government lends credence to the message appearing on the letterhead. The government is free, in such situation, to decide not to lend such credence with the loan of the letterhead. It may lend it or not, as the government (as the owner of the letterhead) sees fit.

                7. The argument being advanced is that by loaning its letterhead, the government lends credence to the message appearing on the letterhead. The government is free, in such situation, to decide not to lend such credence with the loan of the letterhead. It may lend it or not, as the government (as the owner of the letterhead) sees fit.

                  The letterhead argument is DOA.

                  As previously pointed out.

                  What next Greg – are you going to aim for the copyright registry and the letterhead there?

                8. How does the government’s letterhead in this case meet the second factor of the Walker test? The factor where the Court said the following:

                  2) Texas license plate designs “are often closely identified in the public mind with the State. Each Texas license plate is a government article serving the governmental purposes of vehicle registration and identification…the State places the name “Texas” in large letter at the top of every plate…the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State…Texas license plates are, essentially government IDs.” Walker at 472.

                  The argument being advanced seems to skate right over this factor. How does this second factor not require that consumers (the public mind) closely identify “the slants” with federal government? I believe you are right that this factor may not require consumers to outright mistake the speaker for the government, but it seems to at least require a strong association. So the argument I am advancing is that this factor cannot be met as it is counter intuitive to the nature of a trademark. If it is indeed a trademark, consumers inherently do not make a close identification between a federally registered trademark and the federal government because they are closely identifying the trademark with the source (the owner of the mark). The government can dress it up in their letterhead all they want.

                  To keep the discussion in the trademark realm, in Walker the state throws its house mark, “Texas,” on every special design and has use restrictions (as though it’s a trademark licensor) on placement and approval of what other messages may associate with the state’s mark. You may disagree, but I think the house mark on the license plate is what creates the close identification for the public that satisfies the second Walker factor, but is absent here.

                9. How does this second factor not require that consumers (the public mind) closely identify “the slants” with federal government?

                  You are still misunderstanding the analogy being advanced.

                  “Sons of Confederate Veterans” is to “Texas License Plates”

                  as

                  “The Slants” is to “Principal Trademark Register”

                  In other words, the apposite question is not “do consumers associate ‘The Slants’ with the federal gov’t?”. Rather, the apposite question is “do citizens associate the Principal Trademark Register with the federal gov’t?” That is to say, it is Register itself, not the contested mark, that is analogous to the license plates in Walker.

                  As for the question, “do citizens associate the Register with the federal gov’t?”, to ask it is to answer it. Of course they do.

                10. I partially disagree. The Court in Walker during its analysis of factor two states “license plate designs” not simply license plates. I agree. Texas License plates = Federal Registry, but license plate designs = “the slants” (the trademark itself). Therefore, the Court in Walker said the public closely identifies a license plate DESIGNS with the state. Hence the public must close identify a trademark on the registry, not the registry itself, with the federal government.

                  The SoCV created a design for a license plate, as Tam created a mark, “the slants” for the registry. Without a doubt the public identifies license plates with the state, but the Court had to answer the deeper question of whether the public closely identifies personalized designs as government speech. They answered affirmative in their factor two analysis: “Texas license plate DESIGNS ‘are often closely identified in the public mind with the [State].’

                11. As for the question, “do citizens associate the Register with the federal gov’t?”, to ask it is to answer it. Of course they do.

                  That’s a defect in your argument that you seem to want to treat as a strength.

                  Think copyright.

                12. [T]he Court had to answer the deeper question of whether the public closely identifies personalized designs as government speech. They answered affirmative in their factor two analysis: “Texas license plate DESIGNS ‘are often closely identified in the public mind with the [State].’

                  This is a good point. I suppose I could answer it by arguing that you are over-reading that one quote—that what is really important is the forum of the license plate, rather than the design, and that the Court was simply being sloppy with words. Certainly the justices have wriggled themselves out of other corners in the past by making just that “we know we said it, but we did not mean it that way” side-step from their previous writings. I will be the first to concede, however, that as counter-arguments go, this is weak one. A reading that does not suggest that the justices were sloppy is better than one that does so suggest.

                  I believe I have made clear all along that I concede that Tam is not perfectly analogous to Walker. Rather, what I regard as the best argument for the SG here is that Tam is analogous enough. If it is not analogous enough, then I suppose that Tam deserves to win. We will see in time how the justices care to frame this issue.

                13. I agree. They definitely know how to wiggle well. I also think they can somewhat dodge the question by framing the test more towards the Federal Registry. As you suggest, it fits a little better that way.

                  As you can probably tell I would be disappointed with that approach because it seems too divorced from the speech itself and more centered around the forum; letting a collection of individualized speeches get vacuumed up as government speech because they belong to a certified government list.

                  I think at its purist form, government speech should be where the government is constructively the speaker. For example if the government through medium of speech (expression) clearly violates my rights, I have avenues of redressibility. If the government registers REDSKINS on the registry, does it become a speaker such that it implicates civil rights issues, slander issues, defamation issues, etc.? It seems as though it would then say it is a passive participant that merely publishes a list with some gate keeping requirements.

                14. As you can probably tell I would be disappointed with that approach because it seems too divorced from the speech itself and more centered around the forum…

                  Fair enough. I am disappointed that the present controversy is framed as a first amendment issue at all. Tam is already using “The Slants” as the name of his band, so clearly he is not being stopped from speaking. The idea that a trademark registration rejection somehow constitutes a violation of free speech seems to me like irrefutable evidence that the case law in this area has been allowed to tumble down a rabbit hole into a through-the-looking-glass world.

                  I think at its pur[e]st form, government speech should be where the government is constructively the speaker.

                  To the extent that we are discussing a hypothetical case in which the first amendment should rightly be involved at all, I suppose that makes sense. I think that it is kind of silly that we have to decide whether or not this case qualifies as a government speech case, because I think that it is silly that it is considered a first amendment case in the first place.

                  If we do have to shoehorn Tam into the free-speech analysis, however, then I guess I am not to disappointed to see this case further shoehorned into the government speech exception.

                  The government is not obliged to provide any trademark registries at all. If Tam wins this case, then the upshot is that the PTO will be obliged to register all sorts of marks that most of the citizenry will consider appalling. It would be perfectly plausible, in such a circumstance, that the Congress will simply decide to get the federal government out of the trademark registration business. That would be a shame, because it would make the proper functioning of commerce work less well, but it would be an entirely sensible and constitutional response to a victory for Tam in this case. By cramming this case into the “government speech” exception, we will at least be spared such an awkward and inconvenient outcome.

                15. Just wait until the PTO issues a registration for “May Al Qaeda succeed in slaying all you infidel dogs” for a line of training videos and branded assault weapons. I expect that it will be less than a day after that story breaks on FOX before the Congressional majority starts howling for the Trademark Office to be completely defunded.

                16. I understand what you are saying. In my opinion Congress can get savvy and write a trademark statute whose regulatory denials track First Amendment jurisprudence (e.g., existing tests to determine unprotected speech – obscenities, profanities, incitements of violence, illegal activities, etc) especially when commercial speech law seems to generally align with the trademark goals of consumer protection – speech is unprotected if false, misleading, or deceptive.

        2. 5.1.1.2

          why would anyone think that the gov’t is speaking or endorsing speech, merely because the gov’t prints a license plate with a particular group’s message?

          Maybe because reams of public officials at the state level (goverment, congress, courts) support the speech in question and are so obsessed with the subject that they are literally incapable of not telling other people what to do, regardless of the context.

          I expect that everyone knows that the “Choose Life” plates that we have here in Missouri are a reflection of the car owner’s viewpoint … ather than an expression of the Missouri Dept. of Revenue’s viewpoint.

          In many (most) cases, it’s probably closer to the Dept of Revenue’s viewpoint than the owner’s viewpoint which is probably more negative.

          Missouri, as I recall, is one of those states where a r@ped woman has to wait for three days before terminating any possible pregnancy just so the government can force her to listen to some script that they wrote.

  12. 4

    Suppose you wrote a book. That book uniquely expresses something about you to the world and you think that it is a thing of beauty.

    Suppose the Government tells you, it does not approve (as if it mattered) your book specifically in respect of the expressive content, i.e the meaning of what is said (not for example the color of the cover), and will therefore “refrain” from granting you Copyright protection (Congress slipped in a new provision).

    Has your freedom of speech been in any way “abridged”? Certainly you will be punished economically for your choice of the expression of your ideas: it is the meaning or content of your specific ideas expressed which cause you to lose the benefit of your copyrights.

    Suppose you come up with another idea for a book, a sequel perhaps or something more in-depth, but then you remember the Government’s decision not to extend to you protections it extends to most other author’s because of the particular content of your book.

    So do you write the book?… Perhaps no. Do other authors also refrain from writing books? Perhaps yes.

    Do ideas, expression, and speech of a certain type become oppressed or suppressed by the unequal treatment under the law (benefit of a “program” [here property] to an individual) solely because of the Government’s disapproval of the expressive content involved?

    Absolutely.

    Is this an abridgment of the freedom of speech in a free republic (as it could and should be)? IMHO quite simply, yes.

    Suppose you come up with a name for your life’s endeavor. That name uniquely expresses something about you and your passion, to the world and you think that it is a thing of beauty…

    1. 4.1

      That sounds like the best pro-Tam argument to me. We should be clear, however, that it rests on an assumption that if the government is going to assign economic benefits to private expression, it has to be absolutely content-neutral in doing so. And in doing so, the argument slips from addressing the “right to freedom of expression” to instead invoking a “right to have my expression economically incentivized in the same manner as everyone else’s.” Those “rights” seem to me to be different things, and while I see why that latter right might be desirable, I don’t see how it follows directly from the 1st Amendment’s text.

      1. 4.1.1

        DanH:

        What is the purpose of the specific provision? WHY do you think, it was written into law. What was the intended result?

        Did Congress care what is in some government registry? I think not.

        Did Congress specifically, for principled reasons, believe certain rights should not be granted to certain individuals, those of a kind who want to register disparaging marks? Not likely.

        Did Congress intend to affect the content of trademarks, the content and expression in the trademarks consumed by the public, generally, so as to be minimal in disparaging speech? THIS is likely the truth.

        This likely was the intent of Congress, and it is also the consequence, disparaging speech is suppressed in the society. As to whether suppression of any kind of speech is proper that goes directly back to the first Amendment.

        The question of whether a law causes the abridgment of “the freedom of speech” should take into account both direct and explicitly enacted interference with that right and on the other hand indirect and consequential abridgement of that right through “strings attached” to other rights which affect the same individual.

        Because “the right to have my expression economically incentivized in the same manner as everyone else’s.” is tied “with strings” to content, the Government exercises a manner of bribery (or extortion) as regards the expressive aspect.

        It is both the intention and the consequence that freedom of speech is abridged.

        1. 4.1.1.1

          This likely was the intent of Congress, and it is also the consequence, disparaging speech is suppressed in the society.

          I’m pretty sure you just redefined “suppression” to mean “absence of encouragement.”

          I understand your argument. Again, though, I don’t think it follows from the text of the 1st Amendment or from 1st Amendment jurisprudence.

          Because “the right to have my expression economically incentivized in the same manner as everyone else’s.” is tied “with strings” to content, the Government exercises a manner of bribery (or extortion) as regards the expressive aspect.

          Sure, but the point is that the Constitution doesn’t grant you a right to trademark protection. So, it’s a statutory right that is being tied to the expressive content, not a Constitutional right.

          1. 4.1.1.1.1

            Does not help you DanH, because you still have the government making a content-based decision on a form (even if only a form tied to business) ON that expressing factor.

            It just does not matter whether the underlying item is “Constitutional” or not. Most gen eral speech that certainly is protected is not of the “Constitutional” kind at all (for whatever that means).

        2. 4.1.1.2

          anony: Did Congress specifically, for principled reasons, believe certain rights should not be granted to certain individuals, those of a kind who want to register disparaging marks?

          Quite plainly, yes they did. Read the statute.

          And the principled reason is that, because trademarks are not intended to be vehicles for the expression of ideas but rather to indicate the source of goods, there is no reason to promote a marketplace where obscene, disparaging (e.g., r@cist), scandalous and deceptive trademarks are shoved in consumer’s faces.

          There’s no shortage of those ideas in our marketplace, in case you’ve been living under a rock for the last 250 years.

      2. 4.1.2

        I could not write a better answer than DanH’s, so I will not try, except to second everything that he just said.

    2. 4.2

      It is long established that if you have a right, the government cannot discriminate against you for exercising that right. Could you imagine a regime that awarded trademark registrations (or patents) only to Republicans? Or only those who express support of the President? Or the ruling party in Congress?

      In all these cases, the person is still free to express his views. But he is being denied a government benefit based on his expression or political viepoint. Do you seriously think this passes Constitutional muster?

      1. 4.2.1

        It is long established that if you have a right, the government cannot discriminate against you for exercising that right.

        Citation, please?

        Could you imagine a regime that awarded trademark registrations (or patents) only to Republicans? Or only those who express support of the President? Or the ruling party in Congress?

        Those are very different cases from the one we’re talking about here, Tal.

          1. 4.2.1.1.1

            “anon” The issue is quite the same.

            Its completely different.

            You’re talking about giving a trademark only to an arbitrary class of person, regardless of the content of the mark.

            The statute we’re discussing is concerned with the content of the mark and its use.

            1. 4.2.1.1.1.1

              Except for the fact that it is not, you would almost be right, Malcolm.

              As it is, no, you are simply not right.

              But thanks for sharing your feelings.

      2. 4.2.2

        if you have a right, the government cannot discriminate against you for exercising that right/i>

        Except you don’t have a right to a disparaging, obscene, or scandalous trademark. So you’re back to square one.

        Could you imagine a regime that awarded trademark registrations (or patents) only to Republicans?

        Or to black people. Can you imagine?????????????

  13. 3

    Unlike the fields of patent and copyright, the trademark registration system was created by Congress. Not the Constitution. And even if we accept the proposition that a federal registration certificate is somehow “speech” (because it incurs some kind of minor benefit to the owner), shouldn’t Congress be able to put a floor on that system, and say, “This low, and no lower?” It seems to me that the dubious First Amendment rights conferred by the r-in-a-circle are more than outweighed by the Congressional mandate to maintain a working and at least partially predictable system of regulating commerce between the several states.

    1. 3.1

      Again Pinky, reality works against you as that very commerce is already “chock full” of the things below the floor.

      What you want is something different – an injection of PC that simply violates the “content driven” aspect of the issue at hand.

  14. 2

    Business speech still carries some First Amendment protections.

    It is incredulous that you still have not put this together.

    Instead of devoting a full thread to the topic, find the First Amendment professor at your school, take him to a local coffee shop this weekend, buy him a pizza and wham – the solution to your problem will be made obvious.

    1. 2.1

      I thought freedom of speech meant you are allowed to say what you want. As far as I know, it does not mean you have the right to prevent others from saying the same thing. Hence, freedom of speech is irrelevant to the denial of the registration.

      1. 2.1.1

        It means the government cannot condition rights (such as your right to property, not being in jail, guns, even welfare) based on the content of your speech.

  15. 1

    The issue isn’t the Federal government telling Tam he can’t call his band “the slants”. The issue is the Federal government favoring others’ speech (giving them TM protection), or conversely failing to protect Tam’s speech (by denying him TM protection) on the basis of the content of the speech (and, apparently, on the basis of his own ethnic background). The Federal government can’t confer a benefit based on whether or not it agrees with the content of the speech.

    But why worry about it now. By the end of June we’ll have the SCOTUS opinion. If I’m right, I’m sure the Justices will explain this development in TM law with the same kind of lucidity, and clear guidance for the PTO, that they brought to Mayo, Myriad and Alice in the patent arena, so that their opinion will undoubtedly put to rest any possible puzzlement for the presently perplexed. And if I’m wrong, you’ll be correct that Tam’s speech isn’t being abridged, and this was all much ado about nothing.

    1. 1.1

      I’m sure the Justices will explain this development in TM law with the same kind of lucidity, and clear guidance for the PTO, that they brought to Mayo, Myriad and Alice in the patent arena, so that their opinion will undoubtedly put to rest any possible puzzlement for the presently perplexed.

      Now that is a good one! Thanks for the laugh this morning, on an otherwise bleak day. :)

    2. 1.2

      The Federal government can’t confer a benefit based on whether or not it agrees with the content of the speech.

      The issue isn’t about “agreeing with the content” of the trademark.

      It’s about marks that are disparaging.

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