Three New Supreme Court Cases:

by Dennis Crouch

  1. Vidal v. Elster.  Elster is seeking to register the mark TRUMP TOO SMALL, but was initially rebuffed because the law prohibits registration of a mark consisting of the name of a particular individual. 15 U.S.C. 1052(c).  On appeal though, the Federal Circuit found such a restriction unconstitutional — especially in this situation where the mark forms a criticism.  The court’s decision follows the logic of two recent Supreme Court cases on point: Tam (the SLANTS – disparaging marks) and Brunetti (FUCT – scandalous marks).  In its petition, however, the US Gov’t tries to distinguish those viewpoint cases from this one that arguably does not involve viewpoint discrimination. Question presented: “Whether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.”
  2. Nike v. Adidas: This one is not yet a petition, but in an extension request, Nike indicated its plans to petition this case.  The basic issue is whether the IPR statute permits the Board to raise patentability issues sua sponte with regard to substitute claims.  See 35 USC 316(e) (“the petitioner shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence”).
  3. Thryv v. Click-to-Call: This is the sister case of the IPR previously before the Supreme Court. The IPR only canceled some of Click-to-Call’s claims. The district court then invalidated the remaining claim in suit.  However, on appeal, the Federal Circuit ruled that the invalidity challenge was estopped under Section 315(e).  Thus, the petition in this case is likely to raise the same question raised by Apple in the CalTech case. For now though, the petitioner is simply asking for a 30-day extension of its due date.

9 thoughts on “Three New Supreme Court Cases:

  1. 2

    The CAFC seems to have an odd idea of infringement of free speech. As in: not providing a legal monopoly for the speaker is somehow restraining that speaker.

    Also one would think the burden would be high to overcome the statue- especially in light of the clause in full, which clearly shows that the Congress considered the situation of protecting a President’s name- or not- depending on the situation.

    Does it make a difference if the speech is critical or laudatory if ANY viewpoint is being expressed beyond “buy my product”?

    Trump Too Small could be praise, if one thinks he is a tubby pile of human gar*bage, as some do.

    (c)Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.

    1. 2.1

      The CAFC seems to have an odd idea of infringement of free speech. As in: not providing a legal monopoly for the speaker is somehow restraining that speaker.

      The CAFC has that odd opinion because the SCOTUS has directed the CAFC to have that odd opinion. I think that the CAFC panel got Tam right, but the SCOTUS fouled everything up by declaring that various of the Lanham exclusions were 1A violations. Once you grant the premise, however, that one can violate the 1A by refusing to register a TM, then the CAFC’s judgment here seems less “odd.”

      1. 2.1.2

        If this decision holds up, it will be a gold mine for trademark attorneys i.e., find some famous person (athlete, politician, actor, newscaster, etc.), trademark that person’s name in a few random classes, then sell their NIL rights back to them.

        If necessary, make up some story about how the t-shirts with the athlete’s name/number, etc. are just ironic commentary on the commercialization of higher education.


          Don’t you actually have to be using the trademark on some goods that you’re selling to have the trademark stick around or whatever iirc?

      2. 2.1.3


        Your views Greg are less proprietary when they don’t involve patents regarding CS/EE/Mechanical inventions.


          Greg is opining (again) on something he clearly hasn’t the faintest idea about (First Amendment law).

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