Mr. Tam Goes to Washington

Yesterday I was privileged and awed to attend oral argument in Simon Tam’s quest to register the trademark for his band, The Slants. Listening to great minds debate the First Amendment is powerful and inspiring in the way that few things are.

I arrived at 6:00 a.m. and was #2 in the line for attorneys admitted to the U.S. Supreme Court bar. Within minutes we were joined by three more attorneys who, unsurprisingly, were the attorneys for the Redskins.

Oral argument was spirited, probing, and intense. Justice Kagan asked Assistant Solicitor General Malcolm L. Stewart to explain why the statute prohibiting The Slants from getting a registration is not just flat out impermissible viewpoint discrimination. Justice Breyer pressed Mr. Stewart relentlessly to explain how the purpose of the trademark law is advanced by prohibiting registration of disparaging trademarks. Justice Ginsburg was troubled that the Trademark Office appeared to be so arbitrary, letting some disparaging trademarks to be registered, while denying others.

When Mr. Tam’s attorney took his turn, the Justices probed the upper limits of what should be granted a registration.

We can’t know how the Court will rule based the questions that were asked and how the argument went, but we can take heart that our rights and freedoms are a matter of utmost importance to the Court. If I were on the bench, I would strike down the “disparaging” clause as unconstitutional.

How would you rule?

First Amendment v. Trademark

Simon Tam named his band The Slants “to make a statement about racial and cultural issues”[1]. Now he’s the front man for the First Amendment before the United States Supreme Court with his first gig on January 18.

How’d that happen?

Mr. Tam’s application to register his trademark was rejected because it “consists [of] matter which may disparage” people.[2] That particular section of the Lanham Act doesn’t come up very often. Its most famous use to date was to de-register the Redskins trademarks.

Now Mr. Tam is fighting the Trademark Office and this law.

The First Amendment prohibits the government from regulating speech because of its content or the message conveyed. This isn’t like the government saying you can’t have a march because there’s already another group having a march in the same place that day. This is the government saying you can’t have a march because some people don’t like what you’re marching about.

That’s the very essence of the First Amendment. The government can’t stop us from speaking because it doesn’t like what we’re saying.

The courts recognize that invalidating the disparagement clause “may lead to wider registration of marks that offend vulnerable communities.” If the Supreme Court rules for Mr. Tam, the Redskins will also be allowed to register.

But, there’s no need to protect popular or harmless speech. It’s speech on the edge that needs protection “to ensure that we do not stifle public debate.”[3]

That’s why the “First Amendment [should protect] Mr. Tam’s speech . . ..”[4]

 

 

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Photo of Supreme Court building used under Creative Commons license: CC-BY-SA-3.0/Matt H. Wade.

[1] In re Simon Shiao Tam, at page 4

[2] 15 USC 1052, subsection (a), also know as Section 2(a) of the Lanham Act.

[3] Snyder v. Phelps, 562 U.S. 443, 461 (2011)

[4] In re Simon Shiao Tam, at page 50

Is Section 2(a) Fucked?

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Regular readers may recall that the U.S. Constitution requires that we be allowed to register disparaging trademarks like THE SLANTS and REDSKINS, even though it used to be prohibited under Section 2(a) of the Lanham Act.

But what about the part of Section 2(a) that prohibits registration of immoral or scandalous trademarks. “When, oh when, will the courts deal with that?” you ask.

You’ll be happy to know the Court of Appeals is currently considering whether Erik Brunetti will be allowed to register FUCT for athletic and infant apparel.

They should have sold tickets to the oral argument.[1]

Mr. Brunetti argued that FUCT isn’t scandalous because it’s pronounced “F” “U” “C” “T”. The court asked about an ad featuring people wearing FUCT brand shirts while flipping off the camera. Mr. Brunetti’s lawyer had the enviable opportunity to tell the court that: “Giving the finger doesn’t necessarily mean that the T-shirt means ‘fucked’.”[2]

The attorney for the government was asked by the court how the “scandalous” prohibition could be allowed to stand when the “disparaging” provision has been ruled unconstitutional: “What argument could even exist in the ether that would allow this provision to stand?”

How could the nice man answer that?

The Court’s question may be a tip off of where the court is heading. I’ll definitely let you know when there’s a ruling, but, for now, waddaya think? Should Mr. Brunetti be able to secure the additional rights that come with registering a trademark even if that trademark is FUCT?

 

[1] 

[2] Mr. Brunetti already has a registration for SSDD, which certainly does not stand for Same Shit Different Day.

The Redskins and the Slants

A court recently ruled that the law used to deregister the Redskins’ trademarks is unconstitutional.

So how’d that happen?

The Trademark Office refused to grant Simon Tam[1] a registration for THE SLANTS because it’s disparaging to a substantial number of Asian Americans.

Mr. Tam appealed and after some procedural wrangling[2], he ended up in front of a bunch of federal appellate judges[3] who decided to consider whether refusing to register a trademark that’s disparaging is unconstitutional.[4] The Court held that the disparagement bits in the law are unconstitutional, pointing out that the government registers copyrights for disparaging books all the time. If the government tried to reject those copyrights, it would clearly be unconstitutional, so how is this any different?

Not all the judges agreed. One judge argued that the Trademark Office should only apply the disparagement bits of the law when the trademark is just for business (like the Redskins) but not when a trademark is trying to make a free-speechy kind of point (like Mr. Tam). That seems like a lot of deep analysis to ask of an examiner.

So, waddaya think? Should the government register offensive trademarks and let society shame the “bad” owners into changing their ways or should we rely on the Trademark Office to protect our sensibilities? Put another way, do we let the Redskins go on being offensive so that Mr. Tam can reclaim the word SLANT for Asians?

[1] An Asian-America musician (not the Firefly surgeon).

[2] Which is super interesting, but only to lawyers.

[3] At least one of whom might actually be a Redskins fan.

[4] The court considered the Section 2(a) disparagement provision only. The court didn’t rule on the part about immoral or scandalous marks that was at issue in Left Nut Brewing, which they leave to future decisions. Hint hint.