[00:00:00] Speaker 00:
Dean 1109, Inray Brunetti, Mr. Sommer.

[00:00:04] Speaker 01:
Thank you, John Sommer, for the applicant and appellant, Eric Brunetti, reserving five minutes.

[00:00:10] Speaker 01:
Thank you for the extra time, because I think there's a lot that needs to be talked about that wasn't in the briefs, because there are implications that have arisen in the cases in TAM and Blackhorse.

[00:00:20] Speaker 00:
John, this is addressed to both counsel.

[00:00:23] Speaker 00:
I think we'd probably be interested

[00:00:25] Speaker 00:
since Tam is still pending and hearing your arguments as to how this case should come out if Tam goes one way and also arguments as to how this case should come out if Tam goes the other way.

[00:00:36] Speaker 01:
I will address that.

[00:00:37] Speaker 01:
I think that works in the course of my discussion.

[00:00:40] Speaker 01:
But I think sort of my overall theme is I'm no law professor or first amendment lawyer, but I've done a lot of trademark and copyright work over the last several decades.

[00:00:48] Speaker 01:
And no one seems to talk about the practical effects and the practical implications.

[00:00:52] Speaker 01:
And I think that's what's most important.

[00:00:55] Speaker 01:
And in in-rate TAM, the question came up is, well, everyone seemed to assume that it would be unconstitutional to have this kind of limitation in the copyright context.

[00:01:03] Speaker 01:
So how is the trademark context different?

[00:01:06] Speaker 01:
And I submit it isn't.

[00:01:08] Speaker 01:
One question raised by the judge as well, in copyright, it's just automatic and trademark, it's not.

[00:01:13] Speaker 01:
Well, in fact, both statutes are essentially the same.

[00:01:16] Speaker 01:
You file the right application, you check the right boxes, and unless there's some invalidating condition, you get granted.

[00:01:23] Speaker 01:
In fact, I've filed copyright applications have been refused because they're not, it wasn't copyrightable.

[00:01:28] Speaker 01:
I've had applications filed where they've made me change my claim, use different forms.

[00:01:33] Speaker 01:
And in fact, I've had trademark applications that I filed and goes through.

[00:01:36] Speaker 01:
And the first thing I hear is I get a registration certificate.

[00:01:39] Speaker 01:
So that's not a difference.

[00:01:42] Speaker 01:
The difference is it because it's core speech, First Amendment versus not.

[00:01:46] Speaker 01:
Well, in fact, a lot of copyright is not, is purely commercial software programs.

[00:01:50] Speaker 01:
It just owes and wants.

[00:01:52] Speaker 01:
versus you may have trademark applications.

[00:01:55] Speaker 01:
I mean, I think the classic case is stop the exalminization of America.

[00:01:58] Speaker 01:
Purely political speech, but it's being refused.

[00:02:02] Speaker 01:
So I don't think that's the distinction.

[00:02:05] Speaker 01:
Is there a government impromptu, the nerve over copyright versus trademark?

[00:02:10] Speaker 01:
I think for both, the public doesn't assume that the federal government has approved a movie or a book because it's got a copyright notice on it, any more than it does in the trademark context.

[00:02:22] Speaker 01:
And both of them have the same issue.

[00:02:24] Speaker 01:
If you don't have a copyright registration, you don't have a federal trademark registration, enforcement is impractical.

[00:02:30] Speaker 01:
And there's differences, which I'm going to talk about, about why that's true.

[00:02:34] Speaker 01:
Now, the first thing is the government says that speech isn't prohibited or burdened.

[00:02:38] Speaker 01:
And that's absolutely untrue.

[00:02:40] Speaker 01:
And, Tam, we talked about how there was no recordable US Customs Service.

[00:02:45] Speaker 01:
But I think that's sort of one of the more minimal ones.

[00:02:48] Speaker 01:
There's no constructive nationwide use.

[00:02:51] Speaker 01:
So it means without a federal registration, anytime anybody in the nation can start using one of those common law trademarks, under Don Donis, can continue to use it.

[00:03:01] Speaker 01:
You can't use the intent to use system without a federal registration.

[00:03:05] Speaker 01:
Under the intent to use registration, you can get your constructive first use date when you file your application, and then you can delay that at least a minimum of three years before you actually start use, and your first use relates back.

[00:03:17] Speaker 01:
You can only get that with a registration.

[00:03:18] Speaker 01:
You can't get that with common law rights.

[00:03:21] Speaker 01:
No statutory damages, no attorney's fees, no presumption of ownership and secondary meaning.

[00:03:27] Speaker 01:
So in every single case, if you have only a common law trademark, you can only, you have to show ownership and secondary meaning.

[00:03:34] Speaker 01:
You can't, as in the brief, you can't use the trademark clearing house, so you can't prevent others from using your trademark for new domain names.

[00:03:41] Speaker 01:
You can't get internet websites that are offering products like eBay.

[00:03:46] Speaker 01:
eBay is the one exception, almost the others will not cancel auctions for counted products.

[00:03:51] Speaker 01:
without a federal registration.

[00:03:54] Speaker 01:
You can't get a security interest recorded with the PTO, so you can't borrow money.

[00:03:59] Speaker 01:
You can get a UCC-1, but that's in the individual state, but that's sort of a secondary way of getting who's gonna lend real money on a trademark, unless you have a registration and you can record that, like banks do all the time, with the PTO.

[00:04:13] Speaker 01:
And how do you sell your business?

[00:04:14] Speaker 01:
Because you've got nothing to sell.

[00:04:17] Speaker 00:
So I think there's an absolutely very simple-

[00:04:20] Speaker 00:
how Tam would affect this case one way or the other.

[00:04:24] Speaker 00:
If the disparagement provision were held unconstitutional, how would that affect this case?

[00:04:34] Speaker 00:
Is this A-force URI from that?

[00:04:36] Speaker 01:
Well, if Tam, if it's held unconstitutional on Tam, then I win.

[00:04:41] Speaker 00:
I mean, Mr. Tam... Suppose Tam comes out the other way.

[00:04:47] Speaker 01:
Well, I think I win because I have my

[00:04:49] Speaker 01:
evidentiary issues.

[00:04:51] Speaker 01:
And then I also think that- But not on the constitutional basis.

[00:04:54] Speaker 01:
Well, on the constitutional issue I have as applied, which I'd like to get to, and also on the face, because I think the scandalous is broader than disparaging.

[00:05:03] Speaker 01:
And in fact, I think some disparaging becomes scandalous, because nowadays any kind of hate speech or racial slurs, I think, is also scandalous.

[00:05:11] Speaker 01:
But scandalous is broader than disparaging.

[00:05:14] Speaker 01:
And in fact, it involves more core First Amendment issues.

[00:05:18] Speaker 01:
Because I don't see, or let's say, stop the Islamization of America.

[00:05:24] Speaker 01:
And this applies equally to religious names, political groups, is much broader than just the name of a band.

[00:05:32] Speaker 01:
But I think certainly if Tam wins, I win.

[00:05:38] Speaker 01:
Is there government speech?

[00:05:40] Speaker 01:
And I think the answer to that, I think, is the government in their brief in the Eastern District of Virginia

[00:05:47] Speaker 01:
uh, at the summer judgment says, quote, issuance of a trademark registration does not amount to awarding of the U S government's implements.

[00:05:55] Speaker 01:
And I agree with that.

[00:05:56] Speaker 01:
And in fact, the argument is, is the on the circle means government approval.

[00:06:01] Speaker 01:
I hold up a hug enough pint of ice cream and you're not going to think, Oh, the federal government's approved that the public is going to think calories and wonderful things.

[00:06:09] Speaker 01:
And in fact, virtually every item in the grocery store, every item in Walmart target,

[00:06:14] Speaker 01:
Virtually the entire US economy is sold, McDonald's is sold under trademarks.

[00:06:19] Speaker 01:
And no one thinks that the federal government's approving all those things.

[00:06:22] Speaker 01:
So they are in the circle, the federal registration is meaningless.

[00:06:26] Speaker 01:
We know there's no principal register per se in the physical sense.

[00:06:31] Speaker 01:
And in fact, really all that counts is the bundle of rights.

[00:06:35] Speaker 01:
My client wants the bundle of rights.

[00:06:36] Speaker 01:
He doesn't need the registration per se.

[00:06:39] Speaker 01:
And in fact, the registration certificate, which is the only government speech that they can point to,

[00:06:44] Speaker 01:
is all a form.

[00:06:45] Speaker 01:
The only thing that varies from one registration certificate to another is the brand that's selected by the applicant, not selected by the government, and the identification of goods and other things that are specific.

[00:06:59] Speaker 01:
So it's the rights that are important.

[00:07:01] Speaker 01:
Now, what are the implications of the validity of Section 2A?

[00:07:07] Speaker 01:
Well, we know in the vulgar context that some fruits have sexual connotations, and that changes over time.

[00:07:14] Speaker 01:
And of course we have all the ethnic, oriental, Viking, spic, Indian, there's registrations for all those, there's for devils.

[00:07:23] Speaker 01:
All these are offensive to at least some group of religious people or other ethnic groups.

[00:07:29] Speaker 01:
In the oral argument in TAM, the question was, well isn't the trademark system designed to support some kind of economic stability?

[00:07:37] Speaker 01:
Well what it's really designed to support is prevention of confusion and protection of the brand owner's rights.

[00:07:43] Speaker 01:
And in fact, if Section 2A is constitutional, then brand owner's rights become highly questionable.

[00:07:51] Speaker 01:
For example, Eskimo is now considered disparaging the warmest Inuit.

[00:07:55] Speaker 01:
So the registration for Eskimo apply out the door.

[00:07:58] Speaker 01:
If you called someone a Hebrew, in many contexts, that would be considered disparaging.

[00:08:02] Speaker 01:
So it's Hebrew national hot dogs invalid.

[00:08:05] Speaker 01:
And we could go on and on about that.

[00:08:07] Speaker 01:
And even if their existing registrations are valid, they can't file new registrations for new goods.

[00:08:12] Speaker 01:
And let's say, for example, Apple has sexual connotations, then that means Apple can't get a new registration for its newest line of products.

[00:08:20] Speaker 01:
The quandary that Section 2A puts the PTO in is best illustrated by Juniper Cerro.

[00:08:26] Speaker 01:
He is actually in the Capitol Hall of Statuary from the state of California.

[00:08:31] Speaker 01:
Recently made a saint by the Catholic Church.

[00:08:34] Speaker 01:
So obviously the Catholic Church believes he's a good fellow.

[00:08:38] Speaker 01:
St.

[00:08:40] Speaker 01:
Vincent de Paul society, we can certainly see that there'll be more registrations for that.

[00:08:46] Speaker 01:
In fact, there is a registration in the principal register for Pizzeria.

[00:08:50] Speaker 01:
On the other hand, the Native Americans take the position that he committed genocide.

[00:08:53] Speaker 01:
He's like Hitler.

[00:08:55] Speaker 01:
And I don't think there'd be any doubt that Hitler would be a scandalous mark because of the horrible philosophy that's being pronounced.

[00:09:02] Speaker 01:
And so how does the PTO decide

[00:09:05] Speaker 01:
for the next application for Juno-Pasero to grant it or not?

[00:09:09] Speaker 01:
And can it do it without him violating the freedom of political expression or the freedom of religion?

[00:09:14] Speaker 01:
And that's not really the position of the trademark office.

[00:09:17] Speaker 03:
This is supposed to be just a... The test is a substantial composite of the general public.

[00:09:22] Speaker 03:
And so actually, my guess is a substantial composite of the general public is some sort of, I mean, if it's not a majority rule, because I understand there's been cases that have gone as low as like 35% of people.

[00:09:35] Speaker 03:
Wouldn't that be the determination?

[00:09:37] Speaker 03:
You're citing a minority group that maybe takes issue with the name.

[00:09:43] Speaker 03:
If they rise to the level of a substantial composite of the general public, then they would satisfy the test and be able to prevent its registration.

[00:09:52] Speaker 03:
If they don't, then they wouldn't.

[00:09:54] Speaker 01:
That may be how we avoid it, but like Hitler's an example.

[00:09:57] Speaker 03:
That's not how we avoid it.

[00:09:58] Speaker 03:
That's actually what the test is, right?

[00:10:00] Speaker 03:
You need to tell me whether the text is unconstitutional and I don't see your argument.

[00:10:07] Speaker 01:
Well, let's say it's left in the native Americans were the majority.

[00:10:14] Speaker 01:
And they are, cause you know, everyone, I think the majority would agree that Hitler is scandalous.

[00:10:18] Speaker 01:
And so, um, so let's say it's an application for Hitler.

[00:10:22] Speaker 01:
And then, but if, you know, but let's say it's Sinopasero instead, then you're denying the Catholic Church the ability to use Sinopasero, which is something that they strongly believe in.

[00:10:32] Speaker 00:
I think the question is pointing out to you that there are different tests for disparagement and for scandals.

[00:10:39] Speaker 00:
For disparagement, it's a substantial composite of the group, the affected group or this disparaged group.

[00:10:46] Speaker 00:
for scandalous is a substantial composite of the general population.

[00:10:50] Speaker 00:
Agreed.

[00:10:50] Speaker 00:
From the standpoint of the First Amendment, does that make any difference?

[00:10:55] Speaker 01:
I don't think it makes any difference because the problem with Section 2A in part, and I don't think Section 2A is unconstitutional as to the false association problem.

[00:11:05] Speaker 01:
But to the extent that it's judging content, I think that's the problem.

[00:11:10] Speaker 01:
And in fact, when we're talking about whether your speech is prohibited or allowed, basically what this is allowing is my client, he can't talk in downtown Charlottesville.

[00:11:21] Speaker 01:
He can't march in Skokie, Illinois.

[00:11:23] Speaker 01:
He can't wear his clothing that says fuck the draft into the LA County courthouse.

[00:11:28] Speaker 01:
He can go to Hyde Park but not Speaker's Corner.

[00:11:31] Speaker 01:
And so the government is making value judgments

[00:11:35] Speaker 01:
on political and religious and social matters that it's none of its business to be doing under the first amendment.

[00:11:42] Speaker 01:
In fact, that takes us to the next point, the implications of the ruling in this case in In re Tam.

[00:11:47] Speaker 01:
And no one has really focused on the broader implications other than I saw in the most recent brief from Blackhorse is if this is allowed, then as in the Kalman case, which I cited in my brief, a state can refuse registration of a corporate name, such as I Choose Hell Productions LLC.

[00:12:05] Speaker 01:
And so any of the marks that are refused registration can also be refused a corporate name registration.

[00:12:12] Speaker 01:
They could also be refused a city business license.

[00:12:15] Speaker 01:
They could also be refused a sales tax permit.

[00:12:18] Speaker 01:
So in other words, the government can start getting involved in making decisions about, you know, whether pizza is good or not and refusing registrations.

[00:12:26] Speaker 01:
And in fact, if this is constitutional, I don't know why you couldn't refuse registration of a TV station license because

[00:12:32] Speaker 01:
You know, in the historical record, we know there's been anti-Semitic hate speech on radio, and we know that there's organizations that have had, you know, different ethnic groups, they've not allowed to be bishops in their church, for example.

[00:12:45] Speaker 01:
Do we not deny the registrations?

[00:12:46] Speaker 01:
I think that is the implication.

[00:12:51] Speaker 01:
As to this particular client, the unconstitutional is applied.

[00:12:56] Speaker 01:
The system is broken.

[00:12:58] Speaker 01:
And in my record, you know, the rule is you can't have misspellings of vulgar words.

[00:13:03] Speaker 01:
Well, in the record, I point out about FCUK has been registered, 10 registrations, 2A has never raised.

[00:13:09] Speaker 01:
Is it just because the applicant was friends with the examining attorney?

[00:13:14] Speaker 01:
I don't know why, but that's allowed.

[00:13:16] Speaker 01:
My clients whose mark is FUCT, which does not mean fuck, is denied because I show in the record that FCUK is being used to mean the word fuck.

[00:13:26] Speaker 01:
And there is no such evidence in the record.

[00:13:29] Speaker 03:
Well, phonetically, FCUK doesn't sound like the word, but phonetically,

[00:13:32] Speaker 03:
I mean, why don't you pronounce your client's mark?

[00:13:35] Speaker 03:
Are you going to tell me it's Fust and there's a little German thing that's missing on top of you?

[00:13:39] Speaker 01:
Well, we don't have, we don't say UBM, we say IBM.

[00:13:43] Speaker 01:
The International Trademark Association says it's INTA.

[00:13:46] Speaker 03:
IBM's trademark initially had a period after I, after B, and after M, making it clear to the world that it was in fact an acronym.

[00:13:54] Speaker 01:
Unfortunately, I haven't seen that in my lifetime, the periods for IBM.

[00:13:58] Speaker 01:
I've only seen the symbol.

[00:14:00] Speaker 02:
How is it pronounced?

[00:14:02] Speaker 01:
It's F-U-C-T.

[00:14:03] Speaker 01:
It's just like I-N-T-A or like C-S-U-N, Cal State University Northridge.

[00:14:09] Speaker 00:
It's never pronounced as a word?

[00:14:11] Speaker 01:
Not to my knowledge.

[00:14:12] Speaker 01:
That's what my client doesn't say that that's the way it works.

[00:14:16] Speaker 01:
But it's really the question is, is it a misspelling of fucked or fucked?

[00:14:22] Speaker 01:
And how can one get through and one's not?

[00:14:25] Speaker 03:
Because it depends on the record.

[00:14:26] Speaker 03:
And in this case,

[00:14:28] Speaker 03:
The patent office had record evidence from your company's website that demonstrated F-U-C-T on a t-shirt, which your client refers to as the orgy shirt.

[00:14:38] Speaker 03:
The orgy shirt contained an image of a lot of naked people engaged in various acts.

[00:14:44] Speaker 01:
Okay.

[00:14:44] Speaker 03:
Well, thank you for... Wait, wait, wait, wait, wait.

[00:14:45] Speaker 03:
So everything goes on the basis of the record.

[00:14:48] Speaker 03:
You're saying it's F-U-C-T.

[00:14:49] Speaker 03:
The trademark office, on the other hand, is looking at how is it going to be interpreted by a substantial composite of the general public.

[00:14:57] Speaker 03:
How can I say there's no substantial evidence for their determination that a substantial composite of general public is going to pronounce it, and it's going to be pronounced like F-U-C-K-E-D, not F-U-C-T.

[00:15:09] Speaker 03:
I'm not positive I can say that isn't supported by substantial evidence.

[00:15:12] Speaker 03:
I'm also not positive I could say that their determination that your client's purposeful affiliation, or however you want to say it, on his mark, he sells things like what he calls an orgy t-shirt.

[00:15:26] Speaker 03:
When you see the word F-U-C-T on a t-shirt your client calls an orgy shirt, and there's a picture of a bunch of naked people on it, you really think at that point I have to say that their view that the average person would associate your mark with the bad word is not supported by substantial evidence?

[00:15:45] Speaker 01:
I have two responses.

[00:15:46] Speaker 01:
First, in my brief I talk about the actual evidence about used marketplace where it's sold.

[00:15:52] Speaker 01:
But this is the same issue raised in town.

[00:15:54] Speaker 01:
In TAM, the bad evidence, we'll say, happened within a year of the second application.

[00:16:00] Speaker 01:
In this case, the record shows what my client is currently using.

[00:16:05] Speaker 01:
There's no evidence about when that t-shirt was used because they got that from the Google Photos page.

[00:16:12] Speaker 03:
It's on your client's website right now.

[00:16:14] Speaker 03:
It says it's sold out, by the way, just so you know.

[00:16:17] Speaker 03:
Apparently, it's a popular shirt.

[00:16:20] Speaker 01:
Sorry, actually that I do not know.

[00:16:22] Speaker 03:
In addition to that, you know what else is on your client's website right now, which is in the appendix, so I'm not making this up or adding in.

[00:16:27] Speaker 03:
All of these things are in the appendix.

[00:16:28] Speaker 03:
I'm not adding to the record, but it's that lovely little picture of the three little boys wearing the FUCT shirt and flashing the bird.

[00:16:34] Speaker 01:
That's right.

[00:16:36] Speaker 03:
But your argument is their determination that the consumer public, when viewing these images, would not associate the FUCT word with the bad word.

[00:16:47] Speaker 03:
is not supported by substantial evidence in light of that record evidence?

[00:16:51] Speaker 03:
The client's intent is not at issue.

[00:16:53] Speaker 01:
First of all, that doesn't really relate to what's in the marketplace, which I think is the key fact.

[00:17:01] Speaker 01:
The fact that we have nearly 20 years without objection when we know that the public likes to object when it

[00:17:07] Speaker 03:
I'm not saying that there isn't substantial evidence that could have supported the opposite determination.

[00:17:16] Speaker 03:
What's the standard for substantial evidence?

[00:17:19] Speaker 03:
A scintilla of evidence.

[00:17:23] Speaker 03:
It's more than a scintilla of evidence.

[00:17:27] Speaker 03:
The two examples I just gave you are part of this record.

[00:17:30] Speaker 03:
Don't those two examples alone satisfy that incredibly low standard?

[00:17:36] Speaker 03:
I mean, I'm not saying there wouldn't be substantial evidence to go the other way.

[00:17:39] Speaker 03:
I'm not saying you didn't put on evidence that goes the other way.

[00:17:42] Speaker 03:
But I have to decide whether or not, under my very deferential standard of review, I can say that there was no basis for going the way they did.

[00:17:49] Speaker 01:
Well, I certainly would argue that that's a small part of it, because I showed the line, the whole line, as being sold and manufactured in the current time.

[00:18:00] Speaker 01:
And so I may not be able to convince you on that.

[00:18:04] Speaker 01:
But I also think it's very relevant

[00:18:06] Speaker 01:
that in this case, and especially as apparent from the board's opinion, that he's being attacked because of his opinion.

[00:18:12] Speaker 01:
And giving the finger doesn't necessarily mean that the t-shirt means fucked.

[00:18:17] Speaker 03:
The whole point of my client's brand... What it means is, the question is, what would a substantial composite of the American public think about this mark when they see it used above an image of somebody giving someone the finger?

[00:18:29] Speaker 03:
You're saying it's unreasonable for people to think that FUCT

[00:18:33] Speaker 00:
But you also have a t-shirt where the word fucked is crossed out and your client's trademark is superimposed on it.

[00:18:44] Speaker 01:
Yeah, but that is at some indefinite prior time that wasn't entered into the record with any time because I entered in the record what the current use was and that's relevant.

[00:18:54] Speaker 01:
And if we don't know, if it's 20 years ago, that's certainly so attenuated that no consumer is going to see it.

[00:19:01] Speaker 01:
And even if there's one photo on the website, that doesn't mean the consumers, a substantial composite of the consumers in the stores buying the product are going to think it's vulgar.

[00:19:13] Speaker 00:
Okay, well you're in your rebuttal time.

[00:19:16] Speaker 01:
We'll give you two minutes.

[00:19:19] Speaker 00:
Why don't we hear from the government, Mr. Tenney?

[00:19:24] Speaker 02:
Thank you, may it please the court.

[00:19:26] Speaker 02:
We're content to rest on our briefs on the evidentiary question, unless there are questions.

[00:19:30] Speaker 03:
Before you do, I would like to ask you one question along those lines.

[00:19:34] Speaker 03:
What Mr. Summer brought up was a belief that the board's opinion went further than just finding a substantial composite of people disliked it, but rather expressed a personal view.

[00:19:48] Speaker 03:
I'm sure you read

[00:19:51] Speaker 03:
the portions of the board opinion and probably cringed a little, because I did, where the board says that applicant's use of this imagery is lax taste, things like that.

[00:20:05] Speaker 03:
I mean, I don't think the American public would conclude it lacks taste, and lacking taste doesn't meet the scandalous and immoral standard either.

[00:20:14] Speaker 03:
But certainly, whoever drafted this opinion for the board was making sure to express their personal view about

[00:20:20] Speaker 03:
the applicant's mark.

[00:20:24] Speaker 03:
And I didn't think that was a great thing, right?

[00:20:26] Speaker 03:
I mean, that's not the way they're supposed to evaluate it, is it?

[00:20:29] Speaker 03:
It's not because the examiner thinks the mark lacks taste.

[00:20:33] Speaker 02:
If you read the opinion as a whole, and it is as this court has discussed based on the record, it's clear that the board's ultimate conclusion was premised on the proper standard.

[00:20:47] Speaker 02:
on the evidence in the record and on what a substantial composite of the public would think of this and how the public would react and interpret this mark.

[00:20:59] Speaker 02:
The board's decision is not premised on a personal view of a member of the board, it is premised on the record in the case and the record adequately, more than amply supports the conclusion that the board reached.

[00:21:16] Speaker 02:
And I'm happy to go into more instances.

[00:21:19] Speaker 02:
I think they're covered in the briefs and have been discussed already.

[00:21:22] Speaker 02:
I wanted to turn that, unless there are questions on the evidentiary question, to the question that the court posed at the outset of the argument about the possible implications of TAM one way or the other.

[00:21:33] Speaker 02:
If the government were to prevail in TAM, then presumably that would mean that the court would leave intact

[00:21:42] Speaker 02:
the precedents of this court like McGinley and Fox and Boulevard that held that the very provision that's at issue in this case is constitutional because it is a limitation on a government program relating to goods and services and commerce.

[00:21:58] Speaker 02:
And so if the government were to prevail in TAM, then the government would also have to prevail here.

[00:22:04] Speaker 02:
And the arguments to the contrary, primarily that the other side is raising,

[00:22:09] Speaker 02:
to the extent that he's making arguments that wouldn't apply equally in TAM.

[00:22:13] Speaker 02:
It's primarily the argument that the decision here was premised not on an evaluation of the mark, but rather on a view of his extraneous statements in the marketplace.

[00:22:26] Speaker 02:
That's the argument that he advanced for why this case is worse constitutionally than TAM.

[00:22:30] Speaker 02:
If he were right about that, we don't think he is right about that, then that would be an argument just that the board erred because the board didn't properly apply the statute, didn't

[00:22:38] Speaker 02:
consider the mark itself, but instead considered something extraneous that was not relevant to the mark.

[00:22:46] Speaker 02:
That might be an argument that he would win this case on the evidence.

[00:22:48] Speaker 02:
Again, we think that that's wrong, but that wouldn't be a reason that the scandalous part of the provision would be unconstitutional, even if the disparagement provision survives this court's review in TAM.

[00:23:01] Speaker 02:
So then the other half of the question

[00:23:03] Speaker 02:
Um, is, is someone more difficult, which is what happens if the government did not prevail in TAM and if the disparagement provision is invalidated.

[00:23:13] Speaker 02:
And on that one, it's, it's difficult for me to give an answer to that today because it would depend heavily upon the rationale that the court gave for invalidating the provision in TAM.

[00:23:24] Speaker 02:
There was discussion as the court is aware at the argument in TAM about whether

[00:23:30] Speaker 02:
the arguments that Mr. Tam was making there would apply equally to the scandalous provision.

[00:23:36] Speaker 02:
I understood him to be saying that some of his arguments would apply across the board to both, but that there was room for the court to just address the disparagement provision and that there were things about either his application particularly or about the disparagement provision as opposed to the scandalous provision.

[00:23:54] Speaker 02:
And we don't think those arguments are correct.

[00:23:56] Speaker 02:
So I'm not going to say that the court should rule that way and then uphold.

[00:23:59] Speaker 03:
But what argument do you have for why, if the disparagement provision is rendered unconstitutional, what argument could even exist in the ether that would allow this provision to stand?

[00:24:13] Speaker 03:
Any argument.

[00:24:14] Speaker 02:
Any argument at all.

[00:24:15] Speaker 02:
It depends why, as I said.

[00:24:16] Speaker 02:
It depends why the court says that it's unconstitutional.

[00:24:19] Speaker 03:
Let's just say the court says it under the First Amendment.

[00:24:21] Speaker 03:
It's spatially unconstitutional under the First Amendment.

[00:24:26] Speaker 03:
What more would you need to know to be able to delineate what differences exist?

[00:24:31] Speaker 02:
I would need to know the constitutional rationale and whether it was something about the disparagement provision itself.

[00:24:37] Speaker 00:
Let's try it this way.

[00:24:38] Speaker 00:
Is the government's interest in

[00:24:42] Speaker 00:
not trademarking scandalous matter greater than its interest in not trademarking disparaging matter?

[00:24:51] Speaker 02:
I'm not sure I can say it's greater or lesser.

[00:24:55] Speaker 02:
It's related, but they're not necessarily identical.

[00:24:59] Speaker 02:
So I think there is a chance that the difference would relate to the government's interest.

[00:25:06] Speaker 02:
It seems more likely.

[00:25:07] Speaker 03:
What is the government's interest in preventing scandalous and immoral trademark?

[00:25:11] Speaker 02:
Well, they're not preventing the trademarks, just to be clear, but the government interests, at the most general level, the interest is the same, which is that the government is making determinations about which marks are most suitable for, or which marks the government wants to facilitate enforcement of to promote goods and services.

[00:25:35] Speaker 02:
And the government and Congress has concluded both as to marks that disparage groups and

[00:25:40] Speaker 02:
marks that are scandalous more generally that it doesn't wish to use its program for those purposes.

[00:25:47] Speaker 02:
I think that the most significant difference between the two cases, and it's a little hard for me to say this because I'm not sure Mr. Tam himself was making this argument, but there was some suggestion that Mr. Tam's use of the mark was

[00:26:01] Speaker 02:
you know, making a, a sort of state political statement or was expressing something beyond sort of commercial identifier.

[00:26:08] Speaker 02:
And we didn't think that that was dispositive in that case by any means.

[00:26:11] Speaker 02:
And in fact, he wasn't even really raising it on appeal.

[00:26:14] Speaker 03:
But in answer to your question, is there a circumstance in which the court could- And that would, that would go to an as applied theory that wouldn't go to a facial invalidation.

[00:26:23] Speaker 03:
If Mr. Tam's mark was delineated as expressive as compared to other marks that wouldn't justify

[00:26:31] Speaker 03:
facial invalidation if the court were going to go with that argument.

[00:26:35] Speaker 02:
I certainly agree with that, but again, I'm put in, it's a little bit difficult for me to stand here without knowing which of our arguments the court will agree with and which of our arguments the court will reject and to tell you.

[00:26:48] Speaker 02:
I mean, I think in this case, if we would submit that if the government were not to prevail in TAM and if that provision was held to be unconstitutional, either as applied or on its face, that it's

[00:27:00] Speaker 02:
quite likely that supplemental briefing in this case to address the relationship between that holding, which we would then have the benefit of, and this case would be appropriate.

[00:27:11] Speaker 02:
But we think that if the government's position in TAM is upheld, that it's unlikely that supplemental briefing would be necessary because it would... But I guess what I'm not...

[00:27:22] Speaker 03:
certain why you haven't explained to me why supplemental briefing would be necessary because you haven't explained.

[00:27:28] Speaker 03:
I mean, most of your opponent's brief is about the first amendment and you fail to address it entirely.

[00:27:33] Speaker 03:
Um, but certainly you're versed in it because we've had this discussion before.

[00:27:38] Speaker 03:
So what would be a basis upon which there is a need for supplemental briefing?

[00:27:43] Speaker 03:
Tell me why, if it is rendered facially unconstitutional,

[00:27:47] Speaker 03:
What possible difference could there be between that decision and a decision on scandalous and immoral?

[00:27:55] Speaker 02:
Give me any reason.

[00:27:56] Speaker 02:
Well, one argument that was made in that, and again, I hesitate because these are not arguments that we think are correct.

[00:28:04] Speaker 02:
And so the question is really, are there things the court could say that would distinguish the two?

[00:28:09] Speaker 02:
But one argument that was made was that there was a viewpoint component to the disparagement provision.

[00:28:15] Speaker 02:
viewpoint-based component and that that was legally relevant such that they could prevail on that basis.

[00:28:21] Speaker 02:
If you agreed with both of those propositions, both of which we think are wrong, then you wouldn't have the same argument in the scandalousness context.

[00:28:29] Speaker 02:
Now, again, I don't wish to speculate on how the court is going to resolve the case and say, oh, if you say this and if you phrase it this way, then we win this case and if you say it that way, we lose this case.

[00:28:41] Speaker 02:
This court wants to entertain a constitutional challenge to an act of Congress based on a recent en banc decision.

[00:28:47] Speaker 02:
We think it should be done based on briefing by the parties rather than by my speculation ahead of time about what the opinion is likely to say.

[00:28:55] Speaker 02:
But on the flip side, because we do, as we stand here today, have controlling precedent as to this provision.

[00:29:01] Speaker 02:
And so we know that if the en banc court doesn't disturb that precedent, then we should prevail on the constitutional issue.

[00:29:08] Speaker 02:
Unless there are any additional questions.

[00:29:11] Speaker 00:
Okay.

[00:29:11] Speaker 02:
Thank you.

[00:29:11] Speaker 00:
Thank you, Mr. Tanny.

[00:29:13] Speaker 00:
Mr. Sommer, you've got two minutes.

[00:29:15] Speaker 01:
Yes, real quickly.

[00:29:16] Speaker 01:
Central Hudson, I think, is as important.

[00:29:18] Speaker 01:
There has been no government interest established as to why scandalous marks should be refused.

[00:29:24] Speaker 01:
That's for the marketplace.

[00:29:26] Speaker 01:
And there's no government interest because they concede it still can be used.

[00:29:30] Speaker 01:
And to the extent that we're talking about government expenditures, you know, the only real expense after the application is mailing out the certificate, a dollar for postage and another dollar for the paper.

[00:29:40] Speaker 01:
My client's opinions are relevant to the outcome.

[00:29:45] Speaker 01:
His sort of, his under mark is friends you can't trust.

[00:29:48] Speaker 01:
It's question authority.

[00:29:49] Speaker 01:
He's a youth brand.

[00:29:51] Speaker 01:
He does have in the past, long past graphic images of like a Doberman.

[00:29:56] Speaker 01:
And of course Doberman in California is a big issue.

[00:29:59] Speaker 01:
So he's talking about political things, violence, kids being alienated.

[00:30:05] Speaker 01:
That's very important.

[00:30:07] Speaker 01:
And in fact, when we get to the question about as applied,

[00:30:10] Speaker 01:
The letter F asterisk W R D is registered.

[00:30:15] Speaker 01:
N asterisk W R D is registered.

[00:30:18] Speaker 01:
If we consider a mark is determined by either sight or sound or meaning, there's no doubt about what the meaning of that is.

[00:30:25] Speaker 01:
So how can that's explicitly the word fucked, how that can be registered because that's the meaning that my client can't be when my client has a good faith argument about that his means F U C T.

[00:30:39] Speaker 01:
And, you know, the subsidiary is friends you can't trust, counterculture.

[00:30:43] Speaker 01:
Thank you.

[00:30:44] Speaker 00:
Okay.

[00:30:44] Speaker 00:
Thank you, Mr. Summer.

[00:30:45] Speaker 00:
Thank both counsels.