Does Refusal to Register a Mark Violate the First Amendment?

by Dennis Crouch

USPTO v. Tam (Supreme Court 2017)

The Supreme Court today held oral arguments in the trademark battle over whether the rock band can register its name THE SLANTS. The PTO argues “no” because the name is disparaging to Asians and Congress does not allow registration of marks “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1052 (known as Section 2(a) of the Lanham Act). Tam argues that the ban on registering disparaging marks violates his free-speech rights protected under the First Amendment of the US Constitution.

Congress shall make no law … abridging the freedom of speech, or of the press.

In its decision, the en banc Federal Circuit ruled against the government – finding that the anti-disparagement law and its application was unconstitutional and therefore invalid. The case will have a direct impact on the native-american sports-logo cases (“Redskins”), and may usher in a new golden era of fringe consumer products with disparaging names. In its brief, the Government wrote that it should not be forced to register marks “containing crude references to women based on parts of their anatomy; the most repellent racial slurs and white-supremacist slogans; and demeaning illustrations of the prophet Mohammed and other religious figures.” Of course, what the PTO is doing here is discrimination based upon viewpoint. If TAM wins here, the larger question will be whether fraudulent marks can also be denied going forward.

In my view, we clearly have viewpoint discrimination.  However, we have skipped the more fundamental question of whether ‘registration’ should count as speech in the first place — and here to be clear the allegation is that TAM’s speech has been impinged.  Another way of looking at the issue is simply that trademark registration is a government program – and for non-speech-limiting government programs, the government has more leeway to discriminate based upon someone’s viewpoint (at least without violating the First Amendment).  My concern for the case is outside of TM law — I wonder the extent that further strengthening the First Amendment to reach beyond usual speech cases will further empower entities to more generally avoid substantial government regulation based upon so-called “speech” concerns.  [E.g., EPA is violating speech rights of pro-polluters by not letting them pollute while allowing non-polluters do whatever they want…Entirely viewpoint based discrimination.]

[Read the Oral Arguments Transcript: 15-1293_l6gn1]

A few excerpts (not in chrono-order)

JUSTICE BREYER: Look. We’re creating, through government, a form of a property right, a certain form. That’s a trademark. It’s as if through government we created a certain kind of physical property right that certain people could dedicate a small part of their houses or land to Peaceful Grove. And in Peaceful Grove, you write messages, but peaceful messages. And above all, you don’t write messages that will provoke others to violence or bad feelings. Okay? Anything wrong with that? I can’t think of anything wrong with that. There are thousands of places where they can express hostile feelings. It’s just in this tiny place, one-quarter of an acre, that you yourself have chosen to take advantage of that you can’t because it will destroy the purpose. It will destroy the purpose of Peaceful Grove. That’s why I asked my question.

. . . .

MR. CONNELL: Marks constitute both commercial speech and noncommercial speech, and the disparagement clause specifically targets the noncommercial speech and denies registration to marks that only express negative views.

JUSTICE SOTOMAYOR: This is a bit different than most [First Amendment] cases. No one is stopping your client from calling itself The Slants. No one is stopping them from advertising themselves that way, or signing contracts that way, or engaging in any activity, except that stopping someone else from using the same trademark. But even that they could do. Because you don’t need a registered trademark to sue under the Lanham Act’s entitlement for the confusion of the public in the use of any kind of registered or unregistered mark. If another band called themselves Slants, they would be subject to deceptive advertisements because they wouldn’t be this Slants. [Rather] your speech is not being burdened in any traditional way.

JUSTICE BREYER: [The provision] stops nobody from saying anything.

MR. CONNELL: In this case, the government has used the disparagement clause to selectively deny those legal benefits to a mark holder expressing negative views that the government favors, as opposed to mark holders who received those benefits because they express neutral or positive views that the government does favor. . . . It is a [speech] burden because our client is denied the benefits of legal protections that are necessary for him to compete in the marketplace with another band. And the only reason for the denial of those benefits is the burden on his noncommercial speech contained in the mark. . . . I think what the government is trying to do here is simply encourage commercial actors to conduct business in such a way as to not insult customers.

MR. STEWART: It places no restrictions on his ability to use the mark. It may limit the remedies that are available for infringement, but — but that’s entirely regulating the commercial aspects of the conduct.

. . . .

MR. STEWART (for the Government supporting the provision): The trademark registration program and trademarks generally have not historically served as vehicles for expression. That is, the Lanham Act defines trademark and service mark purely by reference to their source identification function. . . .

JUSTICE ALITO: Do you deny that trademarks are used for expressive purposes?

MR. STEWART: I don’t deny that trademarks are used for expressive purposes. As I was saying earlier, I think many commercial actors will pick a mark that will not only serve as a source identifier, but that will cast their products in an attractive light and/or that will communicate a message on some other topic. My only point is in deciding whether particular trademarks should be registered, Congress is entitled to focus exclusively on the source identification aspect. . . .

JUSTICE SOTOMAYOR: What purpose or objective of trademark protection does this particular disparagement provision help along or further?

MR. STEWART: I think Congress evidently concluded that disparaging trademarks would hinder commercial development in the following way: A trademark in and of itself is simply a source identifier … It is not expressive in its own right … and basically Congress says, as long as you are promoting your own product, saying nice things about people, we’ll put up with that level of distraction.

. . . .

JUSTICE SOTOMAYOR:  Your argument earlier was that if someone slanders or libels an individual by saying — Trump before he was a public figure — Trump is a thief and that becomes their trademark, that even if they go to court and prove that that’s a libel or a slander, that trademark would still exist and would be capable of use because otherwise canceling it would be an abridgment of the First Amendment?

MR. CONNELL: I believe that’s correct.

JUSTICE SOTOMAYOR: That makes no sense.

 

 

 

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

65 thoughts on “Does Refusal to Register a Mark Violate the First Amendment?

  1. I think that it is interesting that you take a more negative view of Tam’s argument Professor, but Amy Howe at SCOTUSblog is thinking the government is going to lose.

    I think the Supreme Court is skeptical of both, but I think that in these circumstances SCOTUS is going to be as small as possible so as not to create too much harm. Tam offered no good reason way to avoid upending the entire statute if they have their way, and I think ultimately that was a really bad strategy.

    The government did not take the extreme position on the copyright questions.

    1. This post focuses on the ways the justices seemed skeptical of Tam. Howe’s post focuses on the ways that the justices seem skeptical of the gov’t. To my mind, the most salient thing to notice is that the justices took the case at all. The SCotUS rarely takes a case to the CAFC merely so that they can affirm. The petition did not even identify a circuit split, so there is no real reason for them to take the case, unless they are concerned that the CAFC got it wrong. That is why my money is still on a reversal.

      1. “To my mind, the most salient thing to notice is that the justices took the case at all. ”

        Ding ding ding we have a winner. Except for the fact that in this case it touches on RAYCISM, so they might have just wanted the press. And for the fact that lefties in the gov may have nudged them to take it to protect their precious statute.

        “The petition did not even identify a circuit split,”

        How can their be a “circuit split” at the federal circuit? You mean where half the federal circuit feels one way but not the other half?

      2. Sigh*, F.C. weighed in a trademark issue, which it doesn’t have exclusive jurisdiction. So there can be a circuit split for trademark issues when the F.C. is involved.

        “They wanted the press”… “lefties in gov may have nudged them…”

        Just curious, how long does a tin foil hat last? How often do you replace yours?

        1. I didn’t realize they don’t have exclusive jurisdiction over appeals like this one originating in the office.

          As to tinfoil hat, it isn’t exactly a stretch to see the solicitor etc. filing briefs on behalf of the gubmit. I didn’t pay attention to their recommendations to the court in this case.

  2. SCOTUSblog has a write-up of the oral arguments here:

    link to scotusblog.com

    The writer (Amy Howe) came away from a different conclusion than I did (I didn’t attend; I just read the transcript): Even if the justices saw flaws and inconsistencies in his arguments, they seemed to regard Tam’s position as preferable to the statute (and the government’s defense of it). We’ll know for sure by summer.

    Should be interesting.

  3. What about the poor willfully-infringing, admittedly racist band who wants to use the SLANTS mark to peddle viewpoint discrimination tunes as well? Does the Lanham Act abridge the infringer’s First Amendment rights by authorizing injunctive relief?

    Doesn’t the infringing band have a superior free speech argument since it would be silenced by coercive government action (vs non-registration) through enforcement of an injunction? If so, aren’t all infringers entitled to continued willful infringement as free speech under the First Amendment?

  4. I wonder that all parties seem to avoid the central purpose of TM law: to create and maintain a strong marketplace. Marketplaces function best in “relentlessly positive” arenas (thank you, Justice Kagan!). So while there is certainly a 1st Amendment issue here, isn’t 2(a) narrowly tailored and (relatively) rarely used as a refusal? And doesn’t it further an important societal goal of a friendly, profitable market? Follow the money, SCOTUS.

    1. I think Justice Kagan was being sarcastic with that remark… though I have no idea which way she goes. I think she was troubled with both sides.

      One thing she pointed out is that typically the government is never allowed to have viewpoint discrimination. I’m not sure how to respond to that, except to say that there is a very important reason why government does that.

    2. Relentlessly positive…?

      Maybe you should be more aware of the s e x and v i o l e n c e that pervades the actual marketplace.

  5. I always thought this case was just a vessel to get at the ‘Redskins” mark. Much more difficult because redskins is an old and long time registered mark. Justice Breyer holds the extreme view that property rights come from Government – and therefore any regulation is never a taking. He is just hopeless.

  6. One consideration I haven’t seen discussed is that registered trademarks are published in registers. Allowing registration of disparaging marks will cause the messages to be repeated in official publications. I think the government has a legitimate interest in preventing its official publications from being used as a medium for hateful “speech graffiti”.

    1. That claim regarding “government speech” was discussed to some extent in the briefing and oral arguments, but the primary claim in the case is that the registration denial abridges Tam’s speech rights.

  7. JUSTICE BREYER: Look. We’re creating, through government, a form of a property right, a certain form. That’s a trademark.

    1. One hundred dollars says that “Notpaid” is interpreting this comment in the exact opposite way that Breyer plainly means it

  8. Thank heavens JUSTICE SOTOMAYOR, as demonstrated in her quote above, understands what little a TM registration actually means, contrary to some of the amicus arguments and other BS.

    1. BTW, I assume that this band could easily register the same trademark in any of several states where no one pays much attention to what the mark is as long as you pay the fee?

  9. “I think what the government is trying to do here is simply encourage commercial actors to conduct business in such a way as to not insult customers.”

    Exactly what the gubmit’s been doing since the redskin’s case. What it is is just a “soft” provision to enforce PC culture is what the provision.

      1. ““PC culture”?”

        MM doesn’t know what PC culture is. LOL clueless boomer. You just kind of waddle around like a lost old dog in a society you literally know nothing about. But don’t worry! You’re an expert on the society in place 70 years ago and how terrible it was for your muh victims!

        Here’s an article by a self identifying leftist (note, NOT liberal, though she may be a little bit liberal also) explaining a bit to your old ar se.

        link to esquire.com

        Also note in the article the vid where Mr. Manners himself Ben Shapiro almost got clocked by “Zoey” because he used proper manners.

        1. a society you literally know nothing about.

          I know I live in a society where insecure white guys like you blame “liberals” for making it more difficult for you to get lady action. You already told us all about that.

          I also know that I live in a society where you go around using terms like “PC culture” as if it’s really important to you … but then you can’t provide me with a straightforward definition in your own words.

          And somehow this is my problem? LOL Keep the laughs coming, 6. You’re a very serious person! And I’m sure you’re whole “PC culture” lament is a real fresh new thing that society has never dealt with before. LOLOL

          1. “I know”

            Nothing. Fcking boomer.

            “blame “liberals” for making it more difficult for you to get lady action”

            I don’t “blame” them at all idio to. First, I don’t have a vag so I don’t roll around “blaming” people all that often. Second, even if I did have a vag and threw “blame” around I wouldn’t blame lefties for making it “more difficult” to get FAMILY MAKING action. They have their agenda, explicitly and literally the destruction of the wite mail heterosexual christian capitalist western civilization, by whatever means. That’s their prerogative. I don’t blame them for having this prerogative. I acknowledge that white male christian capitalist society is enormously oppressive. What I do not however do is share the opinion that “all muh oppresshuns are the bad”. Further, were the lefties not being enabled by liberals then I’d have literally no issue with either of them. Lefties prey on idio t liberal’s feelings to further their agenda, otherwise they would have 0 power in our society.

            And again, liberals had very little to do with the current ills I’m not a fan of, other than ally with and enable lefties. Lefties more or less did it all, even if they were enabled by liberals by the liberals lending them their political power so they could join forces.

            1. I don’t have a vag so I don’t roll around “blaming” people all that often.

              and five seconds later:

              Lefties more or less did it all

              Comedy gold. Meet the alt-right, folks. They’re very serious people!

              1. Um that lefties more or less did it all is a simple fact idio to, it isn’t me “blaming” them for doing it. Again, they have their agenda, I don’t blame them for them having their agenda or attempting to carry it out.

                To wit:

                BLAME: assign responsibility for a FAULT or WRONG.

                I assign responsibility but I’m not saying that what they’re doing is a fault or a wrong (though anon will lol). It’s their agenda. I just don’t agree with their agenda or its end goal, or even it’s mid-range goal. I happen to think that what lefties attribute to being white cis male hetero christian western civilization is thus far probably the best thing to happen on planet earth (including for their muh victims). Note: millions of “migrants” agree with me so much that they risk death to come and enjoy the “oppression” in these lands. Further, I acknowledge that I’m nearly certainly biased in favor of it. Though, even heavily biasing myself against it I would still think that, just from a humanitarian point of view.

                1. white cis male hetero christian western civilization is thus far probably the best thing to happen on planet earth

                  Fascinating. What’s the second best thing?

                  LOL

                2. Probably sweet tea. Maybe BBQ. Tacos are pretty close. Maybe good women. It’s a close toss up. I’d have to think about it.

          2. “but then you can’t provide me with a straightforward definition in your own words.”

            I didn’t know you wanted one. But hey, read the article eh idi oto? As it says, nobody has a good definition of the phrase, just like is noted in the article. It’s like the word “RAYCYST” its meaning just shifts around like jelly depending on the situation. This is somewhat because it is a “culture” and cultures change day to day, year to year.

            But generally speaking a decent definition is PC culture: anything having to do with social behaviors (read: everyday actions taken by people interacting with each other or going about their day) undertaken in the name of “not offending” some x party or saving that x party from “oppression”, which generally has the effect of, or is outright dedicated to, the destruction of wite mail capitalist christian western civilization, or which is at least is disruptive thereto.

            If you’re legit finally getting around to caring about the culture you’ve lived in for the last 20+ or so years MM I will drop you a link explaining the history of PCness and PC culture and what it is when I get home. Spoiler, its roots were created by some persecuted german jewish communists fleeing from the nazis in the 40’s and was originally intended to be a means of slipping marxist style thought into western culture by unifying and using the various victim groups (women minorities gays etc) as a psuedo-worker class to get them to rise up communist style against their “oppressors” (aka normal “white” society at the time). This being needed in communist’s views because the Merican worker class would not rise up against the evil capitalist class soviet style (think glorious worker’s revolution) due to their Merican wite cis male christian culture at the time in the 30’s and 40’s. And also somewhat as a side goal PCness was arguably to help the “muh victims” not be oppressed, though even at the time Merica was a relatively good place to live, even as an oppressed class, compared to Russia, though not great by today’s standards. By now of course in 2017 that main goal (turning the US commie) is hopelessly outdated, but the cancer of PC culture continues even though the lion’s share of oppreshion has been done away with as well. It’s like a zombie ideology-like social organism/meme, to try to help the “muh victims” not be “oppressed” by being “forced” by society to be a part of the greatest civ the earth has likely ever known, and may well ever know, in order to be successful in that society (instead of getting to be a part of a magical not yet existant glorious classless com mie paradise where there is no oppression and there is huge wealth for sitting around on your bu tt). They make up more and more oppreshuns by the year to remain relevant and explain away why their muh victims aren’t the Masters of the Universe just yet. Clearly, in their eyes, their muh victims are the most virtuous people on the earth (by virtue of their skin color, sex, gender, or orientation which they were born with), and thus should be the captains of industry and super wealthy one and all by now. And that is so, according to them, even if their muh victims don’t do what the dread wite mails do in order to create society/jobs/prosperity etc. But since their muh victims are not Masters of the Universe just yet, then they already know that obviously it must be the white man’s fault still. Thus they must fight the white man, his culture, his religion, and any oppresshuns they can make up by any means available. Thus, PC culture enters the scene and stays on the scene to fight/undermine/ disrupt/destroy the white male christian hetero culture so that a glorious muh victims culture can emerge (or we can all just live in a wasteland, either/or).

            Ben Shapiro could probably give you a better def, but I think my definition above is informed by his discussions on the matter.

            “And somehow this is my problem?”

            Um, you’re the one qqing about Trump Trumpstepping (supposedly on all your “muh victims” all day long). It sounds like it’s your problem since it is unquestionably what is enabling/enabled Trump.

              1. Um no, but close.

                The “concept” of “not offending people” pre-dated the invention of several “systems of thought” (“critical theory” etc., you can look that up) by several Jews fleeing the nazis that setup the frankfurt school in california in the late 30’s/40’s. Those are a simple historical facts which you can look up without too much trouble.

                Later, in the following decades, those systems of though (critical theory etc.) would be expounded upon to create a new meme/culture (that would hopefully eventually spawn a new society) that would incorporate people’s existing aversion to offending people to eventually bloom into the idea of what we today might call a “half-baked oldschool PC culture” (around the 60’s) which was not widespread and was used by them as the means of getting the emotional masses on board with their scheme to throw down the existing culture and get their meme/culture to spread to new people around the country. The meme/culture they wanted to spread was that the muh victims should band together in their own culture against the white cis male christian culture to destroy that culture because it was hurting the muh victims. The frankfurt school commie jew refugee fellows had previously (in the 30’s and 40’s) had as their actual motive just to destroy the culture so that then a glorious worker’s revolution would take place and we could all live in a glorious commie utopia. But by the 60’s when they and their protegees got around to creating this proto-PC culture commie revolutionary furvor was starting to wane somewhat and the cold war had set in. Remember, this sounds like an ev il conspiracy/plan from our point of view today, but back then word hadn’t spread of the evils of communism as much, and the purges of Mao hadn’t happened yet. They just wanted glorious communism. It was a somewhat reasonable proposition back then, as it had barely ever been tried back then.

                In any event, not many people took their meme/culture to heart. A lot of the people that did were deemed “radicals”. Mostly, as you’d expect, they were “muh victim’s” groups. Your lesbians, gays, minorities, on and on, the groups that were targeted by the meme/new culture. But for the most part it was a small amount of people.

                But time marched ever onward. Feminism had 2nd wave+. Civil rights happened. Deseg happened. Women got still more rights. Laws against gays started to go away. Berlin wall came down. Affirmative action for black people on account of slavery/jim crow was enacted and promptly taken over by white women. Eventually the soviet union crumbled. Etc. etc. slowly after the 60’s the radicals rose to actually manage to get some of them in gubmit to become the boomer establishment we know today (mostly on the dem side). And they began to group together for political solidarity more and more, and they allied with actual died in the wool old school liberals. Liberals who “had a heart” for the muh victims, but didn’t really want to see white cis christian western civ to die like the radicals did. By now (around the 80’s), practically nobody cared to have a commie outbreak, the radicals were becoming more accepted, and they just wanted to use the pre-existing half baked PC culture meme to further their political goals to help the muh victims. Eventually them using it morphed it into what it is today, full on PC culture, “down with the white male christian culture/society” for political purpose to “help” the muh victims. You know, because they’re being “oppressed” into having the best society ever to exist for them.

                Anyway, the jews fleeing the nazis to california only provided the initial germ of a spark of inspiration towards what we know today as PC culture that uses people’s propensity to not offend to undermine the white christian male cis society. They didn’t invent the concept of not offending. They used it.

                Fun fact: In an ironic twist, “critical theory” itself which spawned the new lefty ideology would itself critique lefty ideology as a system enslaving its members and holding them back from liberation.

              2. Also I just realized I think your comment is telling me that you might not be understanding my definition I provided so let me be more clear in it:

                A decent definition is PC culture: ANYTHING having to do with social behaviors (read: everyday actions taken by people interacting with each other or going about their day, EXAMPLES include: hitting people, spitting on people, name calling, marching in the streets, yelling, making posters/websites, having discussions with friends/enemies, blocking trademark applications, encouraging/supporting/subsidizing anti-society behavior etc. etc.) undertaken in the name of “not offending” some x party or saving that x party from “oppression”, which generally has the effect of, or is outright dedicated to, the destruction of wite mail capitalist christian western civilization, or which is at least is disruptive thereto.

                Note the ANYTHING. And the EXAMPLES.

                1. What is noted and what stands out so as to be clearly visible is Malcolm’s absence from the discussion points that you have presented, 6.

                2. He’s just now hearing this for the first time, anon. And he no doubt regards it has more than likely just a bizarre “conspiracy theory”. Even regardless of the evidence easily available and regardless of the fact that modern lefties are now starting to revere the Frankfurt school. But in the very back of his mind there is a nagging doubt.

                  Anyway, for you and MM here’s a documentary on the subject that helps illuminate it better that I did above. There’s several on youtube about the subject.

                  link to youtube.com

    1. I find this whole conversation troubling, and I would encourage both to show some self-control.

      Doubt it will happen, though. Got to always reply back, right? Can’t let anything go. Got to keep trollin’ to keep up the lolz.

  10. “My concern for the case is outside of TM law — I wonder the extent that further strengthening the First Amendment to reach beyond usual speech cases will further empower entities to more generally avoid substantial government regulation based upon so-called “speech” concerns. [E.g., EPA is violating speech rights of pro-polluters by not letting them pollute while allowing non-polluters do whatever they want…Entirely viewpoint based discrimination.]”

    A wee bit of a stretch there D.

      1. You’re right about that being the big question. Though there certainly is a colorable argument that they made in the oral args where effectively the gubmit, in enacting this law (or law / policy combo in reality) are abridging/curtailing/reducing in extent or quantity Tam’s ability to name/call his band xyz by utilizing market power (he wouldn’t get market protections that others enjoy) through the administration of the law.

        It is, admittedly, a soft measure to impose gubmit “limitations”.

        I wouldn’t be surprised to see the vote go down ideological lines.

      2. That is not really a big question, given that business speech remains speech, and the decision below addresses this.

        Some just refuse to “get it.”

      3. How is it a big question? Tam is being financially punished for his viewpoint. Can the USPTO refuse to issue a patent to Ford if the company donates to the NRA? Can the local county refuse to record deeds of houses that display yard signs against a local referendum?

        Does it cost Tam money or opportunities to not have a registered TM? If yes, he has an actionable claim.

      4. Speech is free on signs and billboards. Then why isn’t it free on signage of your company buildings, letterheads, shirts, or products? I think it’s an interesting argument that challenges the USPTO’s attempt to not issue Trademarks to something they deem offensive.

        In reality shouldn’t we allow such trademarks and allow the market to decide if they want to participate with a company they feel is racist? If in fact it is considered offensive the company or trademark or product would fall under the weight of its own choice to pursue such a trademark.

        Also, the last quote by Soto is confusing to me as to why she thinks the two cannot exist separately. For example, you can approve and use a trademark considered negative speech for a company, product or branding and you can libel and slander someone with the exact same speech and be sued in court. The existence of a trademark doesn’t change laws relating to libel and slander and individuals have recourse.

        I mean, we allow people free speech to say horrible things we don’t prevent them from saying it or putting it on a billboard. What does that have to do with laws that allow for legal remedies.

  11. DC I wonder the extent that further strengthening the First Amendment to reach beyond usual speech cases will further empower entities to more generally avoid substantial government regulation based upon so-called “speech” concerns. [E.g., EPA is violating speech rights of pro-polluters by not letting them pollute while allowing non-polluters do whatever they want…Entirely viewpoint based discrimination.]

    I assume you aren’t sincerely wondering about whether this would happen. It’s a given.

    I can’t recall a specific case off the top of my head, but I’m pretty confident that similar arguments have already been made, at least before district courts (without much headway).

  12. LOL

    Wherein the libta rds call out each of their big “muh victims” groups to try to defend their unconstitutional lawl/application thereof.

    ” the Government wrote that it should not be forced to register marks “containing crude references to women based on parts of their anatomy; the most repellent ra cial slurs and white-supr emacist slogans; and demeaning illustrations of the prophet Moham med and other religious figures.”

    Your very gubmit screams “muh victims” “muh victims” in their brief. Maybe Trump will appoint a new director and have this sorted out shortly.

    Gubm it: You guys you guys we can surely register “the drea d wi te RA YCIST SMA LESCH RIST IANS” band name but we can’t register “the slants” band name! That would be agin muh victims! Also we apply this in a very fair and tots non-bi ased way to those living now!!!11! Based on history from 70 years ago! You know, when the ol d decision makers were coming of age.

  13. I’m predicting victory for the government here, with a possible split (Thomas didn’t ask any questions, of course).

    Some of my choice quotes appear below. I highlighted in bold an interesting recognition by Kagan that applies equally to the patent system and is relevant to the whining of the patent maximalists re the “unconstitutionality” of IPRs.

    JUSTICE KENNEDY: You want us to say that trademark law is just like a public park — the public park, a public forum, the classic example of where you
    can say anything you want. We treat this — we treat trademarks just like we treat speech in a public park. Thank you very much. Good-bye. That’s it. That’s your
    argument.

    MR. CONNELL: It — it is my argument. I think the limitation on that, as I said before, are the categories of historically prescribable speech.

    JUSTICE KAGAN: Well, Mr. Connell, this can’t be right …. There’s something different here, in other words, that this is coming up in the context of a government program which provides certain benefits that the government doesn’t have to provide at all. …

    CHIEF JUSTICE ROBERTS: [I]t seems to me that you [the Slant’s attorney] are defining the government program differently than the government would.

        1. …if We (the royal “we”) clench tight our eyes to the very nature of what a patent is (or ig nore the central issue)…

          But that path leads to 1984.

    1. “this is coming up in the context of a government program which provides certain benefits that the government doesn’t have to provide at all.”

      True, in a way that denies the gubmit the opportunity to decide based on their own social whims which ones to grant and which to deny. Either they do it in such a way coincident with the First Mendment or they don’t get to enact/admin their entitlement/bene program.

      1. Folks on all sides often seem rather inconsistent about applying the “But we don’t need to do it AT ALL!” line of reasoning. (Conservatives tried it in opposing same-sex marriage, where liberals basically responded “Yeah but if the government IS going to recognize it at all, then it needs to be non-discriminatory.”)

        So where does it end here? Surely the PTO couldn’t refuse I.P. to someone based on their race or gender – by simply saying “Hey, we don’t have to do it for ANYONE, so that means we get to pick and choose who we like.” Isn’t viewpoint-based speech discrimination subject to the same level of scrutiny?

        1. “Surely the PTO couldn’t refuse I.P. to someone based on their race or gender ”

          Maybe because of title 9 and there not being an applicable statute that would allow the PTO to do so.

          “sn’t viewpoint-based speech discrimination subject to the same level of scrutiny?”

          I’m not sure about that.

          1. A Constitutional infirmity in a statute does not disappear simply because another statute rectifies it. It merely makes that particular Constitutional question moot for the time being.

            In other words, if Congress repealed Title IX, many federal statutes may have mandates/commands that result in sex discrimination that are no longer preempted by Title IX. In that case, proper administration of those laws may create a case under Constitutional law, rather than under Title IX. Similarly, Congress could end the Constitutional question in this case by passing a statute that clarified that the USPTO could not engage in viewpoint discrimination when registering trademarks. This would merely transform this case into a statutory interpretation claims rather than a Constitutional claim, but the outcome is the same.

        2. Freedom of speech is not our only civil liberty. There are many federal laws banning various types of discrimination. In addition, the Constitution (as interpreted) requires that the Federal Government provide equal protection under the law. No need to stretch speech law to reach this behavior.

          1. You seem to want to assume a stretch (and forget that even business speech has First Amendment protections…

            It’s not like this hasn’t been put front and center before (maybe read the decision below)

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