The Supreme Court has affirmed that Trademark law’s restriction on registration of disparaging marks violates the free speech provision of the US Constitution.
Read it: 15-1293_1o13
Although the court’s logic is largely incomprehensible, the result is simple: the PTO will begin allowing registration of disparaging marks and will not cancel Registered marks because they are disparaging.
Although not at issue here, disparaging marks will likely be somewhat more difficult to enforce based upon the greater expressive content of the speech.
Behind a paywall, Scotusblog teases with this:
In an op-ed in The Wall Street Journal, Daniel Henninger weighs in on Matal v. Tam, in which the justices held last week that a ban on the registration of disparaging trademarks violates the First Amendment, arguing that the decision “won’t stop the political coercion cops, who are still deploying intimidation and shaming tactics beyond the reach of the courts and Constitution.”
link to scotusblog.com
MAGAin’ up in the decision, MAGAin’ all around.
HAHHAAHAHAAHAHAAHAHAHAAH
“President Trump has stoked anxiety among Indian techies, who make up the majority of applicants for the H-1B visa program for highly skilled foreign workers. Trump has talked about sharply restricting H-1Bs, and this year, for the first time, the number of applications dropped a staggering 16 percent as companies prepared for Trump’s immigration cutbacks. Instead, Indian outsourcing companies such as Infosys started recruiting Americans, bowing to Trump’s calls for “America First.””
link to washingtonpost.com
6,
That article speaks less to your point than a different linked article at the bottom:
link to washingtonpost.com
Quite in fact, the article that you posted is contradicted by the “better article” and speaks MORE to the coming problem for IT workers: surplus (and expendable) jobs. The focus of your linked article is the fallout of this condition in India, but one can easily see that the same type of fall-out may apply in this country as well.
The “better” article indicates that less jobs going to the US means more jobs and opportunities staying in India, while the article that you actually supplied indicates that even without the influx of possible additional workers, the existing worker base in India is seeing an unprecedented squeeze from over-capacity.
Taking the two articles together paints an even more exacerbated over-supply in India,
As several others have noted, the more power Big Corp obtains (with weaker patents and with stronger Trade Secret laws), the more the typical software engineer becomes an expendable “widget.”
The unthinking lemmings that lap up the Kool-Aid from sites such as techdirt and slashdot will soon realize that their own ‘lockstep” march is approaching the top of the cliff.
the more power Big Corp obtains (with weaker patents
Sure, that makes sense.
Too bad there aren’t any other ways to minimize “Big Corp power” because all the other ways are communist. Right, “anon”? LOL
And thank goodness Mango Hairball is all about “the little guy”. He’s totally not a st 00 ge for giant corporate interests. Which is why your Bernie Sanders “protest vote” means so much. You’re a very serious person, “anon.” Very, very serious.
“Too bad there aren’t any other ways to minimize “Big Corp power” because all the other ways are communist. Right, “anon”? LOL”
That sure is a pretty straw man that you have constructed there Malcolm.
You do realize that there is more than one philosophy that is set against strong patent rights, right?
This is not a difficult concept (unless, like for you, you want it to be a difficult concept).
“And thank goodness Mango Hairball is all about “the little guy””
An odd comment that has absol;utley zero to do with anything that I have ever said about patents and patent law.
You must be confused and want to attribute someone else’s view to me.
As for “very serious,” well your poker tell of you having nothing of merit to actually say screams volumes for itself.
Here’s a hint Malcolm: have something to actually say when you come to post a comment. That way, you won’t look like such an absolute doosh.
I don’t understand the overall point of your post anon but your article just seems to indicate that some indians belieb in India being able to withstand a reduction in H1-B’s granted in the US. Great, I’m glad for them. Let them Make India Great for the First Time!
The overall point is that the story you linked to does not support your contentions.
The overall point is that the lemmings are about to crest the top of their march up the hill.
I know I’m a simpleton, but I’m having difficulty squaring this decision with that license plate decision (IIRC also authored by Alito).
Let’s suppose that trademarks are speech. The circled R -®- that people stick on their registered TM indicates some endorsement by the government – some endorsement of the speech.
Offensive license plates are government speech because the picture is right there with the name of the state, so the state is expressing some endorsement of that speech.
How are these so different? So, a state can elect not to include a Redskins mark on a specialty plate, but the Federal government cannot elect not to provide a trademark registration for the same mark?
If license plates are government speech, aren’t they equally schizophrenic? My state is apparently a fan of every major sports team, a ton of different universities, every season, and lots of different organizations with competing interests.
And how does declining registration of a trademark (by way of disparagement) restrict free speech? No one says you cannot use your mark. And, you may not have Federal protection, but when this happened to the Redskins, I was assured that the Redskins’ marks would still be enforceable under state/common law.
Back to the fundamental issue of whether a mark is speech at all. Doesn’t this call the whole TM system into question? If a mark is speech, then every registration should include a free speech consideration, because every trademark registration is a governmental restriction on speech. Every case ever decided may be called to question because free speech should have been considered. An alleged infringer’s use or breadth of the mark should be narrowly considered so as to minimize the mark’s restriction on free speech.
Does this decision have an impact on restricted patents? Can we now patent death machines? There’s probably not a lot of prior art out there on suicide machines – lots of room in the field.
TLG,
You have many many many things incorrect right from the start.
In both this case dealing with trademarks and in the Texas case dealing with the Texas license plates.
Take a few classes: First Amendment Law and Trademark Law to begin with.
…but do not take them from any professors who cannot understand the instant case – that would be like the blind leading the blind.
I’m having difficulty squaring this decision with that license plate decision (IIRC also authored by Alito).
Like yourself, I was taken by the analogy, but I have to say that Justice Alito’s explanations for distinguishing Walker are among the more persuasive parts of this opinion. Basically, it comes down to the fact that lots of people see Texas license plates every day, and among those who do, nearly all of them think that Texas license plates have something to do with Texas. Meanwhile few people see (or even think about) the Principal and Secondary trademark registers each day, and even those who do think more about the marks (which are the creation of the individual registrants) than about the registers themselves (which are the government property that is supposedly analogous to the license plate).
In other words, whether the analogy does or does not hold in the abstract, in the lived reality the connection between the Principal Register and the U.S. government is just much more attenuated than the connection between a physical license plate and the state of Texas. Given, as Justice Alito said, that Walker was just barely on one side of the government speech line, if you dilute the factual predicates of Walker even a little (as Tam does), then you end up on the other side of the line. Much else of the Tam opinion may have been tendentious or circular, but this part seems to me to be a fair and solid analysis.
I will say, however, that there is some remaining analogy between Walker and Tam. During the oral argument in Walker the attorney for Texas acknowledged that if the SCotUS were to rule against them (that is, to hold that if Texas allows Rotary Clubs and Colleges to have specialty plates, then it must also allow the Sons of Confederate Veterans to have a plate), then Texas would simply stop allowing specialty plates. In other words, Texas is not constitutionally required to provide this forum, and if the price for making the forum available is that they must make it available to those with a truly vile message, then Texas would simply stop providing the forum at all.
The PTO has no authority to say that it will stop registering marks, because it is a creature of Congress, so the PTO made no such threat at oral arguments in Tam. Nevertheless, how will Congress respond once the registrations for Al Qaeda needs to finish the job or Your daughter is next on my list to ________ and _______ are granted. Just like the cuts that came to arts funding that came after the Serrano and Maplethorpe controversies, it is entirely plausible that Congress will decide that if it cannot exclude objectionable marks, well, it does not have to provide any registration scheme at all.
Greg Meanwhile few people see (or even think about) the Principal and Secondary trademark registers each day, and even those who do think more about the marks (which are the creation of the individual registrants) than about the registers themselves (which are the government property that is supposedly analogous to the license plate).
People see that little R with a circle around it all the time. It means something “official” to most people. It means “registered.” It represents a stamp of “approval” — the Fed Government’s criteria has been met.
The most important point of TLG’s post, I think, was to recognize that this “inconsistency means no speech” argument is a pile of b@loney.
<[T]his “inconsistency means no speech” argument is a pile of b@loney.
Agreed.
People see that little R with a circle around it all the time. It means something “official” to most people.
I am sure it means something “official” to most people, but it is a very small something. That is Justice Alito’s point.
After all, if I do not have a registration, but I put the (R) there anyway, there is no penalty. Similarly, if I have a registration, but I omit the (R), there is also no penalty. In other words, the (R) has no meaningful connection to government registration, and I dare say that most people know that (to the extent that they think of it at all). People frequently mis-use the (R) without consequence. It is, often as not, the legal equivalent of a white lie.
By contrast, making your own “Texas” license plate is neither common nor trivial in its consequences.
In any event, as Justice Alito noted, Walker laid down a three part test, and the PTO could not make an adequate showing on all three prongs. Anyone who wants to can read it, so I will not recapitulate it here. Suffice it to say, I did not think that Justice Alito was correct to say that the PTO fails all three prongs of the test, but I am inclined to agree with the Court that neither could the PTO unambiguously satisfy all three prongs. You have to draw a line somewhere, and the Court is telling us that the line for government speech lies somewhere between Walker and Tam. That is fair enough.
I agree with your bigger point, however, that setting aside the government speech issue, there ought not to be a free-speech problem here. Registering a trademark ought not to be seen as an act of speech. For better or worse, however, now it is. At least this decision helps us to recognize the free-speech issue next time an analogous case arrives.
Greg: You have to draw a line somewhere, and the Court is telling us that the line for government speech lies somewhere between Walker and Tam.
No doubt about the line requirement.
I’m not sure that “between” is the best term here. It seems to me that the main distinction between Walker and Tam is the context (registered trademarks versus registered license plates). They’re more like poles around which results can congregate, rather than lines.
[M]ore like poles around which results can congregate, rather than lines.
Sure, that seems a sensible analogy.
“Much else of the Tam opinion may have been tendentious or circular,”
Still grasping at the failed arguments, eh Greg?
Your vigorous search for some confirmation bias in the face of being totally wrong has been rather amusing.
For a real hoot, just go back and revisit our dialogues.
If you ever settle down and try to learn something from this, read again what I tried to impress upon you, and think – just think – through this, you can thank me at your convenience.
Your vigorous search for some confirmation bias in the face of being totally wrong has been rather amusing.
I am gratified to know that I provide the small but useful task of amusing someone.
If you ever settle down and try to learn something from this, read again what I tried to impress upon you, and think – just think – through this, you can thank me at your convenience.
Believe it or not, I have learned from reading your remarks on this case and I do thank you. I mean that sincerely. Just because I find some parts of Justice Alito’s opinion unconvincing does not mean that I am totally deaf to some of the better points you have made in explaining why the Court came down where it did. I believe that my understanding of the Court’s holding here is better for having read your arguments on the relevant points.
That was gracious of you.
Thanks.
TLG And how does declining registration of a trademark (by way of disparagement) restrict free speech?
It doesn’t. In fact, granting the registration has a greater negative impact on free expression.
As has been noted already, our l 00 natic preznit has threatened to sue critics by asserting its registered trademarks against them. That’s how it works.
We’ll see how long it takes before Tam decides to sue someone else who wants to help him in his (misguided and fake) quest to “take back” the term “slants”.
… and for the opposite of “gracious,” we have Malcolm.
TLG: every registration should include a free speech consideration, because every trademark registration is a governmental restriction on speech.
I think there are First Amendment considerations already baked in. It’s one of the reasons that there are other limits on marks, e.g., “purely descriptive” marks are disallowed.
I’m already seeing people trying to defend the disparagement statutes in view of this odd opinion. Those people are flailing hard.
“The circled R -®- that people stick on their registered TM indicates some endorsement by the government – some endorsement of the speech.”
Nah, trademarks are not an endorsement according to this court. That’s because trademarks were around since before the merican gubmit took over recognizing them formally in the lawl apparently.
Perhaps, 6, he means “endorsements” in a manner similar to how you use the word “entitlements”…
Shrug….. that should be listed as 25.2.1.1.
Senator Sessions, you seem to be answering a question I didn’t ask.
Furthermore, because what never happens?
And if it never happens, then once again, what difference does the copyright make?
DC: Although the court’s logic is largely incomprehensible
You read my mind. Strawmen abound. I don’t blame the court. I blame the attorneys for the government who did a less than stellar job here. I’ll grant that it wasn’t the easiest case, given the broad language in the statute and the trademark at issue which was relatively close to the line.
The most glaring issue with the Court’s “logic” is, of course, all the lip-service given to “free speech” principles to back up a decision that turns “disparagement” of wealthy trademark owners into a legal liability. Our very own fake preznit has used his trademark rights to threaten and silence his critics. The bottom line is that this decision makes free speech less free than it was. Why not just come out and say it, Sammy?
My favorite head scratcher in the opinion is where Alito appears to argue that expressive trademarks can’t possibly be interpreted to represent an expression of the government’s views because it would mean that the government is schizophrenic or hypocritical. Seriously. And as support for this bizarre proposition, Alito strays off the reservation and cites trademarks that aren’t remotely disparaging to any ethnic group (“Global Warming Is Good,” “Abolish Ab0rtion” etc)! Footnote 9 on page 15.
The other more extraordinary bit that leapt out at me was this:
Registration of the offensive marks that Tam cites is likely attributable not to the acceptance of his interpretation of the clause but to other factors—most likely the regrettable attitudes and sensibilities of the time in question.
LOL This is the ridiculous “r@cism is a thing of the past” fantasy that this right-leaning Court has invoked repeatedly to open (or re-open) the doors to government-sanctioned r@cist policies (e.g., gerrymandering and voter suppression directed “with surgical precision” at minimizing the rights of minorities). New flash for Alito: (1) the “time in question” is right now — we’re living in it. And (2) trademarks are forever, provided that they’re being used.
Also, what does Alito find “regrettable” about the “attitudes and sensibilities” of this undefined “time in question”? Why does he bother to express his subjective opinion about this “time in question” when it is utterly irrelevant to the analysis?
Alito writes: It applies to trademarks like the following: “Down with r@cists,” “Down with s e xists,” “Down with h 0 m 0 phobes.” It is not an anti-discrimination clause; it is a happy-talk clause.
So what? Remind everyone, Sammy: what’s the point of trademarks? Is the purpose of the system to enable people to “own” snappy negative remarks about other groups of people? If the purpose is something different, then it seems perfectly appropriate to have a statute that eliminates the trademarks that don’t fulfill the purpose. In other words, what is the problem with limiting to trademarks to non-disparaging marks? As long as everyone’s disparagement is treated equally, there’s no “viewpoint discrimination” there.
Sammy: the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination.
Is that what’s required for trademark content regulation to be Constitutional? It has to “support invidious discrimination”? Good grief.
In any event, the floodgates are open for registering trademarks on the most appalling sentiments that any human being has ever expressed. Thank goodness we don’t live in a “regrettable time”!
The irony of you whining over this is stultifying.
I don’t read Mooney’s comments, but I agree wholeheartedly with this comment of yours, anon.
Where’s the “irony”, Billy?
Please inform. I could use the laughs.
Who is Billy, and do you really need a guide as to the stultifying irony of your whining here?
Billy is you, Billy. Rhymes with silly.
I’m still not seeing the “irony”, crybaby. So tell everyone: where is the “irony.”
Go ahead, Billy. You’re a great communicator, after all. One of the best. LOL
“Is the purpose of the system to enable people to “own” snappy negative remarks about other groups of people? ”
I don’t understand your problem with this. If only one person owns the mark, then 1) you know who is saying it and 2) fewer people can say it.
Would you rather that the offensive phrase be printed on tee shirts by thousands of unidentified suppliers?
Would you rather that the offensive phrase be printed on tee shirts by thousands of unidentified suppliers?
Because that never happens.
You’re a piece of work.
” we’re living in it”
^MM literally still living in the 70’s.
Can’t wait till the boomer’s minds that are so mind controlled from 40+ years ago die off.
“So what?”
So there’s this new thing called free speech that is an assurance that all your speech doesn’t have to be happy time talk. Surely you’ve heard of it, it was super big in the 60’s.
“In other words, what is the problem with limiting to trademarks to non-disparaging marks?”
I thought they explained this to you Boomer. Ye olde constitution.
“As long as everyone’s disparagement is treated equally, there’s no “viewpoint discrimination” there.”
Sure there is. Tam’s case is a literal example thereof. Lee had the viewpoint that Tam’s trademark name was disparaging. Tam’s viewpoint was that it wasn’t, and wanted to normalize the phrase through his muh activisms. But his viewpoint was discrim’nated agin by Lee.
“Is that what’s required for trademark content regulation to be Constitutional? It has to “support invidious discrimination”? Good grief.”
To be fair, it probably still won’t pass muster.
“In any event, the floodgates are open for registering trademarks on the most appalling sentiments that any human being has ever expressed.”
Oh noes, too much speech! Oh noes!
too much speech
Trademarks are marks, not “speech”.
Trademarks are regularly used to threaten people who do speak, as I already pointed out. Let me know if you’re confused by that.
You appear to understand even less about trademarks than you do about copyrights and patents.
“Trademarks are marks, not “speech”.”
Oh noes, too many marks! Oh noes!
This statement of Malcolm’s is utter
C
R
P:
“a decision that turns “disparagement” of wealthy trademark owners into a legal liability. Our very own fake preznit has used his trademark rights to threaten and silence his critics. The bottom line is that this decision makes free speech less free than it was.”
First, there is zero tie from this decision to ANY notion of what Trump is doing or has done.
Second, there is zero impact of “legal liability” to ANY trademark owner – wealthy or not.
Third, you whine about less free speech (with your own trademark zero touchstone to reality) and then turn around whine about floodgates being opened.
Malcolm, see posts 3.1.2 and 3.1.1.1.1.
You are STILL not even remotely close yet.
Try without ad hominem – that’s just too much of a crutch for you.
there is zero tie from this decision to ANY notion of what Trump is doing or has done.
LOLOLOLOLOLOLOLOL
Remember, folks: “anon” claims to have cast a “protest vote” for Bernie Sanders. Sure he did. He’s not one of the usual rightwing glibertarian patent maximalists. Nope. He’s really really different. Sure he is.
Meanwhile, the “tie” from Emperor Mango Hairball to this case is exactly what I said it was.
You truly are delusional. Repeating your delusions just does not make them so.
“anon” Third, you whine about less free speech (with your own trademark zero touchstone to reality) and then turn around whine about floodgates being opened.
I said that the floodgates are open on trademarks that allow you to “own” disparaging speech, you silly little boy.
Contrast:
“Trademarks are marks, not “speech”” with “allow you to “own” disparaging speech”
Try again.
Lol, they’re not speech, but they allow you to own disparaging speech. Good ol MM.
There’s no “contrast” here. Pull your head out of your behind and stop pretending to be born yesterday.
I’m expressing my own point of view and also explaining how the case affects everybody. My view is that trademarks are marks, i.e., to the extent that there is any expressive “speech” involved, the right to control that speech exists for a very very very limited purpose.
Likewise, patents are rights represented by words on a paper. They’re not “speech”. But they do allow you to “own” (i.e., exert control over others’) speech (the junky ineligible patents do this, anyway), which is a problem.
Now, if you’re going to insist that trademarks are “speech”, then it’s fair to come after that position with limitations based on (1) its commercial nature and (2) whose backing that “speech” up with registration (i.e., the government).
Remember what the case is about: it’s about whether the failure to register a disparaging mark is “viewpoint discrimination.” I think it’s absurd to conclude that the answer is yes. We’ll find out how absurd shortly when the Supreme Court does backflips to avoid tripping over itself in defense of all the other “viewpoints” that are “discriminated against” by a zillion other statutes.
Or maybe we’ll create a big exception for statutes involving the flag. Because … flag! So serious. So important. Wave it, bro’! You look s00per c00l!
Your rant is not parseable.
“Pull your head out of your behind and stop pretending to be born yesterday.”
Classic Malcolm Accuse Others… meme.
“fair to come after that position with limitations based on (1) its commercial nature”
Not in #Merica boomer.
“whose backing that “speech” up with registration (i.e., the government)”
Mmmmm, that’s not really the case. The gubmit isn’t really “backing up” the speech. The gubmit is, formally and in substance, from the explanation in the decision, merely officially recognizing something that already existed before the gubmit took over officially doing trademarks as an Merican gubmit thing. Because trademarks existed going waaaaaay back in the lawl before the US gubmit got explicitly involved.
“Remember what the case is about: it’s about whether the failure to register a disparaging mark is “viewpoint discrimination.””
Technically it’s about whether or not in this specific case whether the failure to register a disparaging mark was viewpoint discrimination and whether it might happen in other instances as well. Turns out it was iirc.
“I think it’s absurd to conclude that the answer is yes. ”
#Merica wins over lefties. WHEEEEEEEEEEEEWWWWW!
I have a few Liberal Left friends and all of them seem genuinely perplexed by this case.
It’s as if buying into the Liberal Left mantra on PC makes it impossible to critically think about what the First Amendment actually protects.
anon, once it is determined that registration does not make the mark government speech, and it can censor itself, then it the issue clearly becomes whether the government can censor private speech.
I take it then that your lefty friends simply do not understand why the government cannot sensor the content of private speech?
“I have a few Liberal Left friends and all of them seem genuinely perplexed by this case.
It’s as if buying into the Liberal Left mantra on PC makes it impossible to critically think about what the First Amendment actually protects.”
Color me completely not surprised.
“anon” anon>the Liberal Left mantra on PC
LOLOLOLOL
Can you pack any more “mantras” into 6 words? LOL
Malcolm,
Are you trying to make a point?
If you are, then you have failed.
Maybe try to use those vaunted “English” language skills you so often seem to want to pat yourself on the back with so often.
That, and try posting without ad hominem. It seems that you are so intent on the ad hominem, that you aren’t actually saying anything at all.
There’s no “contrast” here. Pull your head out of your behind and stop pretending to be born yesterday.
I’m expressing my own point of view and also explaining how the case affects everybody. My view is that trademarks are marks, i.e., to the extent that there is any expressive “speech” involved, the right to control that speech exists for a very very very limited purpose.
Likewise, patents are rights represented by words on a paper. They’re not “speech”. But they do allow you to “own” (i.e., exert control over others’) speech (the junky ineligible patents do this, anyway), which is a problem.
Now, if you’re going to insist that trademarks are “speech”, then it’s fair to come after that position with limitations based on (1) its commercial nature and (2) whose backing that “speech” up with registration (i.e., the government).
Remember what the case is about: it’s about whether the failure to register a disparaging mark is “viewpoint discrimination.” I think it’s absurd to conclude that the answer is yes. We’ll find out how absurd shortly when the Supreme Court does backflips to avoid tripping over itself in defense of all the other “viewpoints” that are “discriminated against” by a zillion other statutes.
Or maybe we’ll create a big exception for statutes involving the flag. Because … flag! So serious. So important. Wave it, bro’! You look s00per c00l!
Great article by Ned Snow on this case over at SCOTUSblog:
link to scotusblog.com
Well, MM, I tend to agree with your analysis. However, if you like a court calling something black, white, just read the court’s analysis of McCormick Harvesting in MCM Portfolio.
DC: Although the court’s logic is largely incomprehensible
You read my mind. Strawmen abound. I don’t blame the court. I blame the attorneys for the government who did a less than stellar job here. I’ll grant that it wasn’t the easiest case, given the broad language in the statute and the trademark at issue which was relatively close to the line.
The most glaring issue with the Court’s “logic” is, of course, all the lip-service given to “free speech” principles to back up a decision that turns “disparagement” of wealthy trademark owners into a legal liability. Our very own fake preznit has used his trademark rights to threaten and silence his critics. The bottom line is that this decision makes free speech less free than it was. Why not just come out and say it, Sammy?
My favorite head scratcher in the opinion is where Alito appears to argue that expressive trademarks can’t possibly be interpreted to represent an expression of the government’s views because it would mean that the government is schizophrenic or hypocritical. Seriously. And as support for this bizarre proposition, Alito strays off the reservation and cites trademarks that aren’t remotely disparaging to any ethnic group (“Global Warming Is Good,” “Abolish Ab0rtion” etc)! Footnote 9 on page 15.
The other more extraordinary bit that leapt out at me was this:
Registration of the offensive marks that Tam cites is likely attributable not to the acceptance of his interpretation of the clause but to other factors—most likely the regrettable attitudes and sensibilities of the time in question.
LOL This is the ridiculous “r@cism is a thing of the past” fantasy that this right-leaning Court has invoked repeatedly to open (or re-open) the doors to government-sanctioned r@cist policies (e.g., gerrymandering and voter suppression directed “with surgical precision” at minimizing the rights of minorities). New flash for Alito: (1) the “time in question” is right now — we’re living in it. And (2) trademarks are forever, provided that they’re being used.
Also, what does Alito find “regrettable” about the “attitudes and sensibilities” of this undefined “time in question”? Why does he bother to express his subjective opinion about this “time in question” when it is utterly irrelevant to the analysis?
Alito writes: It applies to trademarks like the following: “Down with r@cists,” “Down with s e xists,” “Down with h0m0phobes.” It is not an anti-discrimination clause; it is a happy-talk clause.
So what? Remind everyone, Sammy: what’s the point of trademarks? Is the purpose of the system to enable people to “own” snappy negative remarks about other groups of people? If the purpose is something different, then it seems perfectly appropriate to have a statute that eliminates the trademarks that don’t fulfill the purpose. In other words, what is the problem with limiting to trademarks to non-disparaging marks? As long as everyone’s disparagement is treated equally, there’s no “viewpoint discrimination” there.
Sammy: the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination.
Is that what’s required for trademark content regulation to be Constitutional? It has to “support invidious discrimination”? Good grief.
In any event, the floodgates are open for registering trademarks on the most appalling sentiments that any human being has ever expressed. Thank goodness we don’t live in a “regrettable time”!
The alternate universe in which the CAFC and its “clients” live:
while Cole Kepro maintains that “these license agreements were not entered
into for the purpose of settling patent infringement litigation,” Appellant Br. 57, this argument is significantly weakened by one of the submitted licenses, which expressly recites the parties’ wishes to resolve an ongoing patent litigation by entering into the licensing agreement.
The “argument” is “weakened”? It’s like saying that the “argument” that 2+2=5 is “weakened” by the fact that 2+2 actually equals 4. In the rest of the universe, this would be called “making a false statement to the court without a reasonable excuse for doing so.”
C’mon, CAFC. Use the tools we’ve given you to clean up the profession.
Case: COLE KEPRO INTERNATIONAL, LLC v. VSR INDUSTRIES, INC.
Super excited to see how this plays out with respect to cannabis marks.
Yo D! Release my comment from yesterday!
Never mind. I edited out Sammy’s filter-activating language and got it posted.
Also, this one is off topic. But this is related to the bio field. They filmed some DNA replication.
https://www.eurekalert.org/pub_releases/2017-06/uoc–vio061317.php
link to washingtonpost.com
The Supreme Court “held” that named respondent Simon Tam was the “lead singer” of his band. He’s not. Tam is the band’s founder and bassist, but the more energetic and magnetic Ken Shima is their frontman and lead singer since 2014. Pretty good band, BTW.
I second that. Saw them play not too long ago. Way better than I expected.
One word: “Redskins.”
Best potatoes I’ve ever had.
…specially in Oklahoma….
(Notwithstanding Idaho’s claim to spuds)
For that matter, what about: Yankees. Sure felt disparaging when Scarlett used it.
Like SCOTUS’ screw up with Citizens United equating “spending money” with speech, they get it wrong again. A trademark is not speech – not even commercial speech. (Yes, I would overturn those cases that hold a trademark is speech.)
A trademark is an *identifier*. We can’t use the numbers 1, 2, 3,… for everything so we substitute graphics and words and if the identifier is unique within a class of good or services, here’s your registration. Plain and simple – a mark draws a line between the product/service and the provider of the productservice.
Non-registration of a mark does not prevent the word’s or symbol’s use as speech, it only prevents its use as an identifier of goods. Can the words “THE SLANTS” have meaning as speech? Sure, but when used to identify a band from amongst other bands, there is no speech content at all.
Likelihood of confusion is the test for whether a trademark infringes on the rights of others. That test does not contain a factor that says “if two trademarks mean the same thing, they infringe.” The test’s factors are about similarity, look, sound, products, etc. The free speech message that a mark conveys could be used as a factor, but only as a comparison of the marks *as an identifier.* If the similarity of similar marks are conveying the same impression, one may be infringing on the other. But it is not because of free speech principles, it is because the impression of the identifying characteristics are similar. What the speech means is irrelevant. If it is relevant, then a dissimilar mark that conveys a similar message can now be attacked for infringement. For example, can the THE SLANTS and THE THIN-EYES be registered as marks for a band wanting to “take back” the disparaging nature of the phrase.
I frankly don’t care about the disparagement clause. I say register whatever you want. If someone doesn’t like the product with a particular mark, then don’t buy it. But SCOTUS’s reasoning like in most of its IP cases shows a lack of understanding of intellectual property that only can be explained by the lack of real IP courses in their IP education. Using this reasoning, dilution should fall next – my “message” regarding Company X’s is the same as mine. So if my trade dress conveys a “message,” whatever that may be, I can prevent other trade dress that conveys the same message? That is what this uncomprehensible reasoning supports. Slippery slope really.
Trademarks identify sources. That is it. If the identifier has some convuluted meaning behind it – does not matter – it is not the same meaning for all consumers. But as an identifier, it *is* the same meaning for all consumers, especially when their is a nice database for someone to look it up. So even though I don’t think the PTO should have a disparagement clause, the free speech clause should not prevent the PTO or Congress from creating one.
You appear to miss the concept entirely.