Matal v Tam: Only I Can Disparage You!

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.

 

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.

99 thoughts on “Matal v Tam: Only I Can Disparage You!

  1. 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.

    1. 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.

      1. …but do not take them from any professors who cannot understand the instant case – that would be like the blind leading the blind.

  2. Shrug….. that should be listed as 25.2.1.1.

  3. 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?

  4. 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”!

    1. The irony of you whining over this is stultifying.

      1. I don’t read Mooney’s comments, but I agree wholeheartedly with this comment of yours, anon.

      2. Where’s the “irony”, Billy?

        Please inform. I could use the laughs.

        1. Who is Billy, and do you really need a guide as to the stultifying irony of your whining here?

          1. 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

    2. “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?

      1. 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.

    3. ” 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!

      1. 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.

        1. You appear to understand even less about trademarks than you do about copyrights and patents.

        2. “Trademarks are marks, not “speech”.”

          Oh noes, too many marks! Oh noes!

    4. 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.

      1. 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.

        1. You truly are delusional. Repeating your delusions just does not make them so.

      2. “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.

        1. Contrast:

          Trademarks are marks, not “speech”” with “allow you to “own” disparaging speech

          Try again.

          1. Lol, they’re not speech, but they allow you to own disparaging speech. Good ol MM.

            1. 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!

              1. Pull your head out of your behind and stop pretending to be born yesterday.

                Classic Malcolm Accuse Others… meme.

    5. 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.

  5. 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”!

  6. 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.

  7. Super excited to see how this plays out with respect to cannabis marks.

  8. Yo D! Release my comment from yesterday!

    1. Never mind. I edited out Sammy’s filter-activating language and got it posted.

  9. 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.

    1. I second that. Saw them play not too long ago. Way better than I expected.

  10. One word: “Redskins.”

    1. Best potatoes I’ve ever had.

      1. …specially in Oklahoma….

        (Notwithstanding Idaho’s claim to spuds)

    2. For that matter, what about: Yankees. Sure felt disparaging when Scarlett used it.

  11. 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.

    1. You appear to miss the concept entirely.

  12. I hardly find the decision incomprehensible. In fact, it was one of the most straightforward and easy to understand decisions ever written by the Court (which may not be saying much).

  13. link to scotusblog.com

    Justice Samuel Alito, in an opinion that was joined by Chief Justice John Roberts and Justice Clarence Thomas, agreed with Kennedy – to a point. Much like Kennedy, Alito acknowledged that states have an interest in protecting children from abuse; moreover, he added, “it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.” But, he noted, the North Carolina law under which Packingham was convicted must ultimately be deemed unconstitutional because it also bars sex offenders from gaining access to “a large number of websites” – including, but not limited to, Amazon, The Washington Post, and WebMD – “that are most unlikely to facilitate the commission of a sex crime against a child.”

    Having said that, however, Alito also disputed any suggestion that cyberspace is, as he put it, “the 21st century equivalent of public streets and parks,” which would leave states with “little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” Arguing that “there are important differences between cyberspace and the physical world,” he lamented what he described as “loose rhetoric” and “undisciplined dicta” in the majority opinion.

    I wonder if Alito found that “loose rhetoric” “regrettable”?

    Seriously, though, there are major differences between cyberspace and the physical world. One of the key differences is that you can’t have non-consensual se xual intercourse with people you “meet” on the Internet. Also, on the Internet you can’t strip search an innocent 10 year old girl to see if there’s drugs hidden in her panties, even with a warrant that specifically identifies the girl. Alito should be familiar with this stuff by now.

    1. What has that case got to do with patents…?

      (It’s obvious why YOU are interested in it, but this is not that type of forum)

      1. This is an IP blog. The First Amendment applies to the IP system.

        Pretty straightforward stuff.

  14. HAHAHAHAAHAHAHAAHAAHA.

    just lol. And also this is right after Lee left.

  15. Wither Redskins?

    The Supreme Court is often said that an unconstitutional law is no law at all. The question is, does the government have to formally undo the cancellation of the Redskins Mark, or must the Washington Redskins proactively do something?

    The answer to this question would be pertinent to the issue of IPRs if and when they are found to be unconstitutional.

    1. Whatever the fourth circuit has to say on this question will go a long way toward answering my question from the other day about what it would mean for already tanked claims if IPRs are shot down as unconstitutional.

    2. The Redskins have a pending case in the 4th Circuit that is on hold awaiting today’s decision. The Court with this case will certainly be able to resolve the issue for them. The Redskins have already taken the action they needed to protect their Mark.

    3. Ned, the “Redskins” TM issue is pending in the Fourth Circuit re six trademark registrations held by Pro-Football, Inc. (“PFI”) that include the terms REDSKINS or REDSKINETTES. Those marks were cancelled by the Trademark Office in 2014 based on the trademark statute provision that the Supreme Court just struck down. It should not take long for a decision.

      1. The fourth circuit has no breathing room to rule against the Redskins. The relevant portion of the statue used to cancel their TM is no more. Gone.

  16. The holding is simple and straightforward.

    8-0, the court holds the prohibition on registering disparaging trademarks unconstitutional.

    1. Registration is not government speech. Trademarks are private speech.
    2. The government cannot regulate the content of private speech.

    1. The holding is simple and straightforward

      And yet, look at the characterization of the headline here…

      Perhaps this:

      …a performance that may some day be considered understandable, but that, in these primitive times, so transcends what is said to be the known that it is what I mean by magic.
      Charles Fort, Wild Talents 1932

      Exchange “largely incomprehensible” for “magic” and you have the Left Liberal mindset well displayed.

  17. This is probably a small point, but does anyone else find it odd that the Court does not walk through even a perfunctory severability analysis?

    Does anyone happen to know whether the Lanham Act includes a severability clause?

    If not, are we to assume that the rest of the Act still stands, or is that an open question?

    1. Lol – so soon you forget our exchange and how I informed you of when the “defaults” of severability attach (when Congress does not discuss, THEN the default for severability attaches and explicitly, when Congress debates whether a bill should have severability or not, then the “defaults” will not attach).

    2. Greg, I do not think they address severability unless the issue comes up. I recall in the copyright case, Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998), involving the seventh amendment, the Supreme Court simply held that the statute authorizing statutory damages and requiring that they be determined by the court was unconstitutional to the extent of the requirement that they be determined by the court. Thus the defendant could demand a jury trial.

      1. I suppose that makes a certain measure of sense. Best not decide an issue that is never briefed.

        In any event, I see that the 1946 act included an express severability clause, so presumably the rest of the act is unaffected by today’s decision.

    3. No, not at all.

      The Court found the disparagement clause unconstitutional – the holding is limited to this clause.

      The decision that the Mark in question is unregistrable is vacated and the case is remanded back to the USPTO for further proceedings.

      The rest of the Act remains.

  18. Two comments:

    1) I was predicting emphatically that this case would end in reversal, both because I thought that it deserved reversal and because the Court (so I reasoned) does not take cert to the CAFC merely so as to affirm. I see that I was wrong about that (at least on the second point).

    2) On the other hand, I care more about the constitutionality of IPRs than of denial of TM registrations for “disparaging” marks. What I take from this case is that the SCotUS takes constitutional cases from the CAFC even when it does not mean to reverse. I still think that IPRs are more likely to be shot down than upheld, but the odds of affirmence do seem better today than they did yesterday. That is a happy thought.

    1. …an affirmative example of self-selected bias.

      Glomming onto “take-aways” that merely reinforce what you want to believe evidences a profound lack of critical thinking Greg.

      You won’t learn anything by doing that.

    2. Greg, I think this shows that the Supreme Court takes cases involving exceptionally important issues when there is controversy regardless of whether they intend to reverse or not.

      In MCM Portfolio LLC, and in the Cascades dissents, both Amici and judges noted the exceptional importance of the issues presented, and the substantial disagreement with the Federal Circuit position from the beginning (Patlex) on its handling the constitutional issues.

      So you might be right.

  19. This result should have surprised no one. Just because on particular form of censorship is in vogue with the DC Bureaucracy doesn’t make that constitutional. The only thing “incomprehensible” about the opinion is that it had to be written at all. Here are some key quotes that a 1L halfway through Con Law could have told you would be in the opinion in some form:

    “If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”

    “Trademark registration is not the only governmentregistration scheme. For example, the Federal Government registers copyrights and patents. State governments and their subdivisions register the title to real property and security interests; they issue driver’s licenses, motor vehicle registrations, and hunting, fishing, and boating licenses or permits.”

    “the Court’s cases have long prohibited the government fromjustifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed.”

  20. “Although the court’s logic is largely incomprehensible,”

    “Poets priests and politicians
    Have words to thank for their positions
    Words that scream for your submission
    And no-one’s jamming their transmission
    ‘Cause when their eloquence escapes you
    Their logic ties you up and rapes you”
    –The Police

    1. And on a lighter note, in view of the recent events in London and the attempts to assassinate Republican congressmen, many have called the sponsors of the Shakespeare in the Part production of Julius Caesar to cease representing Julius Caesar as Trump. But the sponsors demurred, understandable, saying, “They need more practice.”

  21. 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.

    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 Abortion” 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 “racism 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 racist policies (e.g., gerrymandering and voter suppression). 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 racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause.

    So? 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 dont’ fulfill the purpose.

    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”!

  22. Will there be a wave of trademark squatting applications on offending marks? Why not?

  23. This is a huge HINT from the SCOTUS that TTAB constitutionality should be challenged:

    “Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country.”

    Pay attention TM lawyers!

    1. This is a huge HINT from the SCOTUS that TTAB constitutionality should be challenged:

      I’m not sure why you’d focus on a throwaway line in a decision that unabashedly (if incoherently) supports a strong and expansive First Amendment. That same First Amendment is going to bite back, and it’s going to bite back hard. Wait and see.

      1. And you have credibility left on this issue because?

        1. you have credibility left on this issue

          LOL — what’s “this issue”?

          Like Dennis, I think this opinion is a circular word salad that makes little sense and I have a detailed post in moderation (triggered by text in the decision that I copied) pointing out several of the problems with it.

          But, hey, if the First Amendment is strong enough to ensure that we simply must have trademarks on “Alito’s m@m@ is a —— ——- ———– who gives —– —– swine”, then it’s probably strong enough to ensure that a whole lot of other kinds of communications are protected. Like communications using a computer network, for instance. In fact, there was a case dealing with that issue today and the First Amendment was strong enough to crush a statute there, too.

          So tell everyone more about these “hints.”

          LOL

          1. Well, that didn’t take you long…

            So tell everyone more about these “hints.”

            You are already trying to get other people to supply the cogent things asked of you.

            Instead of the ad hominem, let’s see YOU make a cogent position.

            (You are not even remotely close yet)

            1. Are you trying to trademark the word “cogent”?

              Just asking.

          2. This was not “Alito’s decision” as if it was just an accidentally decided case. It was unanimously decided and included all four liberal and all four conservative justices. The reasoning is not circular at all – the only case the government had was that a TM registration was government sponsored speech. The court went to great lengths to show that this notion is absurd and, if true, would extend the reach of government so far it could start regulating any speech it wanted, including copyrighted books. Clearly, the exceptions to the first amendment are not so easy to find as to nullify it. The court quashed this dangerous precedent in its tracks.

        2. credibility…

          left?

          That implies that he had some to begin with, eh?

          😉

      2. What is incoherent is your babbling about the First Amendment “bite back.”

        Maybe (just maybe) you want to do more than gurge your rants of feelings and provide some cogent view on just how that First Amendment IS going to “bite” those “other IP areas”…

        Yes, I know that actually saying something meaningful (and lacking ad hominem) for you is an extremely difficult endeavor, but please, take your time and make that effort.

    2. Trademarks are not made by or issued by the PTO like patents. They are not specifically in the Constitution and entirely Federal like patents and copyrights. The PTO merely provides a registration system for trademarks providing Federal judicial enforcement advantages [which can be revoked].

      1. Paul, inventions are not made by the government, are they? Just like trademarks, they are private rights — the grant of power in the constitution is to secure to inventors exclusive rights in their inventions.

        Thus, an inventor has a right to a patent under law upon applying with procedure. He is connstitutionally guaranteed a term with exclusive rights.

        So where does Congress get the power to revoke patents of its own authority, or to authorize the Executive to do so? That is not a power granted to them.

        1. “Necessary & Proper” covers a multitude of sins.

          1. But, Greg, it appears that the wording of the constitution, particularly “secure” was put there precisely to rebut any authority of Congress to revoke issues patents. The founder knew of the continuing assertion of such a right by the Privy Council, and want to specifically to make sure that once granted, only a court of law could revoke a patent according to the law.

            1. The purpose of “secur[ing]” is to promote “progress” of the useful arts. The only thing that IPRs are empowered to consider is whether the claims are limited to progress, or whether the claims tie up (at least in part) the prior art. As such, it is not perspicuously clear to me that there is any contradiction between the constitutional prescription to “secure” and the IPR prerogative to cancel.

              1. Greg, your exegesis virtually eliminates and gives no meaning to “secure.”

                You have to place “secure” in the context of the times considering the active intervention of the Privy Council into patent matters. The word certainly requires not only that patents have exclusive rights for limited times, but that they be “secure.” This certainly means, to me, that the point of Founding Fathers was to prevent the intervention of the government (Congress or the executive) into the validity of the patent after it has been granted.

                Certainly the cases of the Supreme Court in 1800s are consistent with this “property” aspect of patents. Not only did the Supreme Court hold that the PTO could not re-examine and cancel claims it found unpatentable (McCormick Harvesting), it further held that the government had no standing to file his suit in court cancel a patent for any reason other than fraud.

                As we know, Congress cannot grant the government standing by statute. That would be, like Marbury v. Madison, plainly unconstitutional.

            2. Incidentally, how does examination “secure” anything to anyone? If IPRs exceed the constitution’s warrant to “secure” the inventor’s rights in the invention, then how is examination not equally ultra vires?

        2. Try suing for “invention infringement.’

        3. I don’t believe there is anything inherently unconstitutional about the IPR statute, any more than the previous re-exam statute. But as applied, the PTO is violating the letter and spirit of the statute by making it nearly impossible to amend a claim. And to add insult to injury, the PTO applies the broadest reasonable interpretation standard, which has been justified during normal prosecution mainly on the grounds that there is a process by which the PTO rejects claims using a broad interpretation and the applicant can then amend the claims. In the case of IPRs, this bargain has been violated and undermines the very purpose of the BRI standard. The SC should compel the PTO to permit amendments as a matter of right, as it did in a reexamination.

          1. But as applied, the PTO is violating the letter and spirit of the statute by making it nearly impossible to amend a claim.

            I’m not seeing this. Can you explicate?

            The SC should compel the PTO to permit amendments as a matter of right,

            But that is not how Congress wrote 35 U.S.C. 316

    3. 7th amendment?

  24. “Although the court’s logic is largely incomprehensible,” much like the disparagement clause itself. How anyone could not view it as unconstitutionally vague is beyond me. The Court says as much in the opinion but doesn’t reach a resolution of the ultimate void-for-vagueness legal question.

  25. My favorite part: “It is thus far-fetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently.”

    1. Please post that sentence on the blogs of the TM-clueless attorneys who made that “far fetched” argument in their amicus briefs in this case.

      1. Add the following good slam from the decision:
        “For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make.believe” (Sony),10 “Think different” (Apple),11 “Just do it” (Nike),12 or “Have it your way” (Burger King)13? Was the Government warning about a coming disaster when it registered the mark “EndTime Ministries”14? “

      2. Should we egg their houses too?

        1. I think Malcolm has some bricks and bats…

          😉

  26. Although the court’s logic is largely incomprehensible

    LOL

    The “logic” of 101 gets a free pass from the editors of the blog, but the rather straight forward (but oh-so-politically-incorrect) non-control of speech gets a “incomprehensible” tag.

    Tis a strange albeit fitting reflection of the general editorial controls (and the pursuit of such “norms” of the Liberal Left).

    1. Well, anon, you should take a victory lap. You have been saying this for years.

      Imagine the marks that are being filed right now…

      1. It’s not going to be a pretty sight…but I was wondering the same thing.

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