[00:00:02] Speaker 04: We have one case this afternoon in Ray Eric Brunetti. [00:00:08] Speaker 04: We've allotted 15 minutes aside, but the panel anticipates that we'll allow extra time, so let's not rush things. [00:00:18] Speaker 03: Mr. Summer. [00:00:21] Speaker 03: May it please the court, John Summer and Devin Beckwith for Appellant Eric Brunetti. [00:00:26] Speaker 03: The government has attempted to justify this restriction on speech. [00:00:30] Speaker 03: You've read its brief, you read my brief. [00:00:33] Speaker 03: I think you understand my viewpoint on those things. [00:00:37] Speaker 03: And unless the court has questions, I'm interested in hearing if the government has anything new to say. [00:00:44] Speaker 04: Well, I suppose we were to construe this statute somewhat narrowly. [00:00:51] Speaker 04: I mean, you make the point in your brief that in the past the PTO has construed [00:00:55] Speaker 04: immoral and scandalous to reach some of the same things that would have been covered by the disparagement clause, and to the extent that the PTO has done that, presumably that's improper under the TAM case. [00:01:10] Speaker 04: Suppose we were to construe it more ordinarily to reach indecent speech, sort of indecent speech that was involved in Pacifica. [00:01:22] Speaker 04: Would that make a difference? [00:01:24] Speaker 03: Well, it won't make a difference because the first thing is, Congress hasn't written that statute. [00:01:29] Speaker 03: And I don't think this Court is given the authority to rewrite a statute. [00:01:33] Speaker 04: Well, rewrite a statute. [00:01:35] Speaker 04: We are given the authority to construe statutes to avoid constitutional questions. [00:01:41] Speaker 03: Well, another way of saying, let's assume it was so construed. [00:01:46] Speaker 03: And I sort of refer to it as the PES marks. [00:01:49] Speaker 03: The government refers to profane, excreditory, and sexual marks. [00:01:54] Speaker 03: That doesn't survive because for, first of all, the, as we said in the Tam case, because I take the position that the Anbach decision in Tam is laws of the circuit, and the Federal and the Supreme Court has not changed that. [00:02:08] Speaker 03: And that's topic regulation, which is still subject to strict scrutiny. [00:02:14] Speaker 03: But the two people I cite for the argument that those marks do express a viewpoint and therefore are subject to strict scrutiny and cannot be regulated, [00:02:23] Speaker 03: is Harlan. [00:02:25] Speaker 03: I mean, Harlan in Cone, California says it better than I could. [00:02:28] Speaker 04: Well, except that Cone, California was not commercial speech, and it was not in the context of a government program. [00:02:38] Speaker 03: Well, but I don't think that makes any difference, because that's one of the points of Mattel, is that trademarks do express viewpoints. [00:02:48] Speaker 03: And in many cases, they express core speech viewpoints. [00:02:52] Speaker 03: And in fact, if you look at the record in this case, the board found that my client, the reason it says why my client's market is refused is because he's a misogynist. [00:03:02] Speaker 03: He's critiquing capitalism. [00:03:05] Speaker 03: He's promoting nihilism. [00:03:07] Speaker 03: That all sounds like coarse speech to me. [00:03:09] Speaker 03: So if you're talking about my client. [00:03:11] Speaker 04: All we had was a trademark. [00:03:14] Speaker 04: And we determined that that trademark was indecent under the Pacifica standard. [00:03:20] Speaker 04: Would that, would it be permissible for the government to regulate that? [00:03:25] Speaker 04: No. [00:03:25] Speaker 03: No, because, and in fact, it's funny as I've been reading the autobiography of George Carlin and he talks a lot about, about Pacifica. [00:03:33] Speaker 03: And Pacifica was just saying the government can regulate, can have time and place regulation of indecency. [00:03:39] Speaker 03: But nothing in Pacifica suggests that the government can prohibit indecency in all times and places. [00:03:47] Speaker 03: And the trademark office has taken the position here [00:03:50] Speaker 04: Well, the trademark of this is not prohibiting at all, right? [00:03:54] Speaker 03: Well, the Supreme Court, I think, has also dealt with that, because that was one of the things we argued last time, is whether denial of registration is sufficiently large that it is the equivalent of prohibition, or certainly it's an unconstitutional regulation of speech. [00:04:12] Speaker 03: So I think that issue is behind us. [00:04:14] Speaker 03: Denial of registration is sufficiently significant to be of constitutional merit. [00:04:20] Speaker 04: Well, it's not a prohibition, right? [00:04:23] Speaker 03: No. [00:04:24] Speaker 03: Well, actually, that's a good question to ask. [00:04:26] Speaker 03: Because in a sense, this statute almost is prior restraint in the sense that most of these applications are ITUs, intent to use. [00:04:35] Speaker 03: And almost all of them, when they're rejected, never get used. [00:04:39] Speaker 03: My client's unique because he's been using it for more than two decades. [00:04:42] Speaker 03: So basically, one of the ways the restraint in speech works here is people file an application, the PTO rejects it, [00:04:50] Speaker 03: And they think, because they're not trademark lawyers, they can't use it. [00:04:54] Speaker 03: And all those ITUs die. [00:04:56] Speaker 04: So the statute is... So what you're saying is people are reluctant to use a mark unless it can be registered? [00:05:04] Speaker 03: Absolutely. [00:05:05] Speaker 03: I mean, you look at the universe of goods and services out there in the marketplace, and virtually everything you see is a registered trademark. [00:05:15] Speaker 03: But the one argument I think that relates to that is the government implicitly argues we're going to be flooded with vulgar marks. [00:05:25] Speaker 03: And first of all, of course, registration isn't required that anyone use the marks or that people buy them. [00:05:31] Speaker 03: But the point of the First Amendment is the free marketplace of ideas. [00:05:36] Speaker 03: My client's marks are never going to be sold at Walmart or Target. [00:05:40] Speaker 03: There is a place for his marks, and that's why he's selling them. [00:05:44] Speaker 03: There's, for example, when I was young, there's Spencer Gifts. [00:05:47] Speaker 03: I don't know if it's still around. [00:05:48] Speaker 03: And they had a lot of gag gifts for, like bridal showers and bachelor parties. [00:05:53] Speaker 03: There is a purpose for that. [00:05:54] Speaker 03: I mean, Pacifica doesn't say that George Carlin's seven words can't be played on the radio. [00:06:00] Speaker 03: It just says you can't play them at two o'clock in the afternoon. [00:06:03] Speaker 03: The prohibition of registration limits use for all place and times. [00:06:08] Speaker 03: The trademark office doesn't say you can register your mark only if you spell it at Spencer Gifts. [00:06:14] Speaker 03: Or you can register it only if you sell it on a porn site, because they take the position that it doesn't matter where it's being used. [00:06:22] Speaker 03: If it is offensive, it can't be used. [00:06:25] Speaker 03: But see, I think you're missing the key point. [00:06:27] Speaker 03: We're not only talking about profanity. [00:06:29] Speaker 03: This statute covers all kinds of scandalous stuff. [00:06:33] Speaker 03: You've obviously got my point. [00:06:34] Speaker 03: The disparaging is a subset of scandalous. [00:06:37] Speaker 03: But we also have religious marks. [00:06:42] Speaker 03: God does not have a penis. [00:06:43] Speaker 03: Certainly that person is trying to make a point. [00:06:47] Speaker 03: And that's not just a vulgar point. [00:06:49] Speaker 03: That's clearly a core first speech. [00:06:52] Speaker 02: Do you think we're talking about just scandalous, or is it scandalous and immoral? [00:06:56] Speaker 03: Well, the Trademark Office says, well, rarely are marks refused as immoral. [00:07:00] Speaker 03: And in fact, the TMEP says that basically virtually immoral is a subset of unscandalous. [00:07:06] Speaker 03: So they'd like to say there's very few marks dealing with immoral. [00:07:09] Speaker 03: You know, my client's mark was refused because it was allegedly scandalous. [00:07:12] Speaker 01: And in the world. [00:07:13] Speaker 01: It was refused for both. [00:07:15] Speaker 03: Okay. [00:07:17] Speaker 02: On the last page of the TTABS decision, I think it refers to both. [00:07:20] Speaker 02: Okay. [00:07:21] Speaker 02: So what do you think? [00:07:21] Speaker 02: Do you think it's being rejected under both grounds? [00:07:25] Speaker 03: Well, it doesn't make any difference. [00:07:28] Speaker 03: I mean, first of all, what businesses of the government to determine morality? [00:07:34] Speaker 03: I mean, what area of government has what Supreme Court cases says that the government can regulate morality? [00:07:40] Speaker 03: In Pacifica, the government says we can prevent on the publicly owned airways dream the hours that young children are listening things that are indecent. [00:07:53] Speaker 03: Nowhere in the Pacifica or any other case does it say you cannot have scandalous, vulgar, profane marks or words at any other time. [00:08:03] Speaker 03: So that was just a very narrow time and place limitation. [00:08:10] Speaker 04: Any other? [00:08:11] Speaker 04: Let's hear from the government. [00:08:13] Speaker 04: Thank you. [00:08:19] Speaker 00: Thank you, your honor. [00:08:20] Speaker 00: May it please the court? [00:08:21] Speaker 00: Go ahead. [00:08:23] Speaker 00: Joshua Salzman on behalf of the PTF. [00:08:26] Speaker 04: At a minimum, wouldn't we have to construe this statute to be limited to the category of indecent [00:08:34] Speaker 04: speech in decent trademarks in the light of the TAM decision? [00:08:39] Speaker 00: I don't think that's a necessary consequence of the TAM decision. [00:08:42] Speaker 00: I think all that the court has to do today, though, principally before the court, is a facial challenge. [00:08:47] Speaker 00: And in considering that facial challenge, what's necessary is to look to whether or not the statute has a cleanly legitimate sweep. [00:08:54] Speaker 00: There is a core of this provision that I think indisputably has a cleanly legitimate sweep. [00:09:00] Speaker 00: That's words like those at issue in Pacifica, graphic sexual images. [00:09:04] Speaker 00: renderings of genitalia, things like that. [00:09:07] Speaker 00: And in order to dispense with the facial challenge, the mere existence of that material is enough to resolve the issue. [00:09:15] Speaker 00: Then for the as applied challenge, I think the record before the board was sufficient to establish that the mark sought here is effectively the equivalent of one of those seven dirty words. [00:09:26] Speaker 00: And therefore, any concerns about future as applied challenges and the future scope of the provision need not be resolved today. [00:09:35] Speaker 02: The T-Tap's decision suggests that there's two different meanings of the word, and one of them is annihilism, anarchy, things like that. [00:09:43] Speaker 02: And then at least there was some evidence from the website that suggested that maybe the trademark was being used in that context. [00:09:52] Speaker 02: So what if there is a situation, and I don't know if it's satisfied here, but what if there's a situation where the trademark is something more like America is, or the government is, or the world is? [00:10:05] Speaker 02: fucked like that. [00:10:07] Speaker 02: What is the situation there? [00:10:10] Speaker 02: It seems like that would be something that would be considered scandalous and immoral by the PTO. [00:10:17] Speaker 00: I think it would, Your Honor. [00:10:19] Speaker 02: Why is that not viewpoint? [00:10:21] Speaker 00: That's not viewpoint because it's being adopted and applied on a neutral level. [00:10:25] Speaker 00: So if you look at the Second Circuit's decision in Perry versus McDonald, if you say that expletives are unavailable to everybody on an even-handed basis, [00:10:34] Speaker 00: That is a content-based restriction, but it's viewpoint neutral. [00:10:38] Speaker 00: Now, it may be that somebody wants to say F the draft or somebody else wants to say F draft dodgers. [00:10:45] Speaker 00: And those are both viewpoints, but it's equally being denied to everyone. [00:10:49] Speaker 00: And what the Second Circuit in Perry said is that is not a form of viewpoint discrimination. [00:10:55] Speaker 00: If you just say expletives, we don't want those in our government program. [00:10:58] Speaker 00: We're going to set those aside. [00:10:59] Speaker 00: And similarly, [00:11:00] Speaker 00: for graphic sexual material? [00:11:02] Speaker 02: I understand what you're saying, but let me ask you something else. [00:11:04] Speaker 02: You agree, though, that it's expressive, right? [00:11:07] Speaker 00: I do, Your Honor, but I don't think that necessarily changes the analysis here. [00:11:11] Speaker 00: And the example I would give you comes from the Supreme Court's RAB decision, where the court was discussing flag burning. [00:11:19] Speaker 00: And what the court said was, of course, under our decision in Texas versus Johnson, if you pass a statute that says you can't burn the flag as a political statement to disparage [00:11:29] Speaker 00: to critique American policy. [00:11:31] Speaker 00: But if a law is adopted that says no burning anything in this public place and it has the incidental effect of preventing you from burning a flag there, that can be a totally permissible form of regulation. [00:11:45] Speaker 00: The mere fact that there's an incidental burden on some expressive speech by adopting a permissible general rule doesn't mean that the statute is [00:11:55] Speaker 01: unconstitutional as applied or subject... Do you agree that this is content restriction? [00:12:00] Speaker 01: Your argument is it's not viewpoint, but you accept that it is content? [00:12:04] Speaker 00: Absolutely, Your Honor. [00:12:05] Speaker 01: Okay, so what is the level of scrutiny that you think we ought to be applying to your non-content neutral restriction? [00:12:13] Speaker 00: So, I think the right framework here is the government program analysis laid out [00:12:20] Speaker 01: in USAID, and the right way to think about this is whether... Do you agree that we rejected that analysis in our in-bank TAM decision? [00:12:28] Speaker 01: You did, Your Honor, but... Okay, so we rejected it in our in-bank TAM decision. [00:12:33] Speaker 01: Is it your view, I know it's your view that the Supreme Court, at least a majority of the justices, did not reach that issue, even though four of them did, but is it your view that this panel is free to disregard the in-bank holding on that legal point, even though the Supreme Court affirmed [00:12:50] Speaker 01: and cast no doubt on that holding? [00:12:52] Speaker 00: Well, I think the relevant question here comes from this Court's 2014 decision in Samson and Troy v. Samson Manufacturing, where similarly, as in this case, this Court had en banc issued a holding. [00:13:06] Speaker 00: There the relevant holding was Hyatt v. Capos. [00:13:09] Speaker 00: There the decision went up to the Supreme Court, which affirmed, and a later litigant came and tried to cite this Court's en banc holding and said, that's still good law. [00:13:20] Speaker 00: And what this court held, and the site, by the way, there is 758 F 1322. [00:13:25] Speaker 00: I'm going to be quoting from page 1326 of that opinion, that this court is bound not only by the Supreme Court's judgments, but also by its mode of analysis. [00:13:37] Speaker 00: So I think the relevant question here is when we look at Justice Kennedy's controlling concurrence. [00:13:43] Speaker 01: We're bound, certainly, by the Supreme Court's analysis and mode of analysis. [00:13:47] Speaker 01: I guess the Second Circuit and Ninth Circuit have both consistently held that if there is a particular holding which the Supreme Court does not reach, those circuits have held that that holding will continue to bind the circuit absent in bank action, even if the Supreme Court decided the case on narrower grounds. [00:14:08] Speaker 01: Are you suggesting that our [00:14:11] Speaker 01: our precedent is in conflict with those circuit's precedent? [00:14:15] Speaker 00: I don't think there needs to be a conflict. [00:14:17] Speaker 00: I'm not familiar with the Ninth Circuit case you're referencing. [00:14:19] Speaker 00: The Second Circuit case, I assume you're talking about the Kiebel Line, where the Second Circuit had held that it had to do with alien tort statute liability, whether or not that extended to a corporation. [00:14:32] Speaker 00: The issue goes up to the Supreme Court, and the Supreme Court decides the case on completely different grounds. [00:14:38] Speaker 00: related to extraterritoriality. [00:14:40] Speaker 00: It wasn't analyzing the same issue. [00:14:42] Speaker 00: It just disposed of the case on an entirely separate ground. [00:14:46] Speaker 00: Here, by contrast, what we have is the Supreme Court was considering the precisely same ground. [00:14:50] Speaker 01: The second circuit case I was looking at is Ballantulo versus Ford Motor Company, which is obviously not the same case that you were looking at. [00:15:01] Speaker 01: And the ninth circuit case I was looking at was Chen versus Allstate. [00:15:04] Speaker 01: in 2016, and both of them have the Supreme Court deciding the case on less, deciding fewer than all of the decisions that were rendered below. [00:15:16] Speaker 01: And in both cases, the circuits said, and I'll quote from the Second Circuit case, there's no authority for the proposition that when the Supreme Court affirms a judgment on a different ground than an appellate court, it thereby overturns the holding that the Supreme Court has chosen not to address. [00:15:29] Speaker 01: To hold otherwise would undermine basic principles of stare decisis and institutional regularity. [00:15:34] Speaker 00: Right. [00:15:35] Speaker 00: And I do think that the most relevant precedent here, as I said, is Troy v. Sampson manufacturing. [00:15:42] Speaker 00: But ultimately, this Court is going to have to decide whether Justice Kennedy's notable refusal to join Parts 3b and 3c of Justice Alito's opinion. [00:15:52] Speaker 01: Did he cast any doubt on those opinions? [00:15:53] Speaker 00: I think he did, insofar as he explicitly reaffirmed page six. [00:15:58] Speaker 00: It's either page five or page six of the slip opinion. [00:16:01] Speaker 00: where he explicitly reaffirms that various forms of content-based discrimination in the context of the trademark program is permissible. [00:16:09] Speaker 00: So I think that if you look, this is page five or page six of the slip-up, it's at page six. [00:16:18] Speaker 00: And I can't say that he expressly conflicts. [00:16:22] Speaker 00: What I'm saying is it's well settled, for instance, that to the extent a trademark is confusing or misleading. [00:16:28] Speaker 01: Time out. [00:16:28] Speaker 01: Stop. [00:16:29] Speaker 01: And slow down. [00:16:30] Speaker 01: You're going way too fast. [00:16:31] Speaker 01: I'm sorry, Your Honor. [00:16:32] Speaker 01: So where on page six are you? [00:16:34] Speaker 01: I have the slip opinion, and I have Justice Kennedy's page six in front of me. [00:16:37] Speaker 01: Where are you reading from? [00:16:39] Speaker 00: I am reading from the full paragraph on the bottom of the page. [00:16:42] Speaker 01: It begins with, this case does not present that one. [00:16:44] Speaker 00: It does, Your Honor, but it then goes on in the second sentence to say, it is well settled, for instance, the law can protect consumers that, to the extent a trademark is confusing or misleading, the law can protect consumers and trademark owners. [00:17:00] Speaker 00: Now, that's a form of content-based discrimination. [00:17:04] Speaker 01: First off, both of those are expressly exempt from the First Amendment. [00:17:07] Speaker 01: Deceptive and misleading trademarks. [00:17:10] Speaker 01: Deceptiveness is one of the clear exceptions to First Amendment scrutiny. [00:17:15] Speaker 01: And we actually said that in our opinion as well, our in-bank opinion expressly says exactly these forms of restrictions are, of course, still permitted. [00:17:26] Speaker 01: So how is Justice Kennedy's agreement with us that these restrictions are permitted somehow an implicit disagreement with other restrictions that we say are not permitted? [00:17:37] Speaker 00: I think read in context, and with his refusal of half the Supreme Court to join Justice Alito's opinion, I do think there's force to that. [00:17:46] Speaker 00: But even if you disagree, and even if you think that this court, that Justice Kennedy's opinion, is not controlling and doesn't displace this court's un-bomb ruling on that point. [00:17:55] Speaker 02: What if you just think that Justice Kennedy's opinion is decided on a narrower ground? [00:18:00] Speaker 02: I mean, I think that's what Judge Moore is saying, is how do you know that it's rejecting [00:18:05] Speaker 02: and not just deciding the issue on a narrower ground. [00:18:09] Speaker 00: I think in context, that's the best reading, Your Honor. [00:18:11] Speaker 00: If you disagree with me, however, I'd like to explain why, even if this court disagrees on that point, we still prevail. [00:18:20] Speaker 00: Because then I think the right way to frame it then, even if you're not going to think about this as a government program, which I would submit is, I think, the best model, at a minimum, Justice Alito thought that the best analogy might be a limited public forum. [00:18:35] Speaker 00: where, again, some forms of content discrimination are totally permissible. [00:18:39] Speaker 04: Okay, but so what is the government's interest here? [00:18:44] Speaker 04: I mean, that would seem to me to be a pretty key point. [00:18:48] Speaker 04: Are you relying, for example, on the protection of children, the Pacifica rationale, rationale that has found its way into other Supreme Court decisions about indecent speech? [00:19:01] Speaker 04: Are you relying on the protection of children? [00:19:03] Speaker 04: Is that part of this, or is this not part of it? [00:19:05] Speaker 00: I don't think it's necessarily the protection of children specifically. [00:19:10] Speaker 00: I think it has to do with promoting a particular form of commerce and making a judgment about the sorts of marks that should be... So you're not relying on the protection of children? [00:19:21] Speaker 00: There's certainly language. [00:19:22] Speaker 00: The Supreme Court in Pacifica and then in Sable Communications certainly recognized the government has a strong interest in regulating [00:19:30] Speaker 00: indecent material for the purpose of protecting children. [00:19:34] Speaker 04: My question is, are you relying on that interest or are you not relying on that interest? [00:19:38] Speaker 00: It's not one we cited to this court, which is... Does that mean you're not relying on it? [00:19:44] Speaker 04: You are not relying on it? [00:19:47] Speaker 00: I think that it further buttresses our point that that isn't the primary interest that we've cited here. [00:19:53] Speaker 01: You have to articulate what the government's substantial interest is in preserving the constitutionality of this [00:20:00] Speaker 01: Judge Schick has asked you a simple straightforward question five separate times and you have evaded it very unskillfully every time. [00:20:08] Speaker 01: Answer the question, is the government's position that a substantial interest that it is protecting by virtue of having this regulation, the protecting of children from hearing these words? [00:20:20] Speaker 00: I think that is an interest that this serves. [00:20:23] Speaker 00: I do not think that is the only interest that is, I also honestly don't think it's the primary interest, but that is certainly an interest. [00:20:29] Speaker 04: What is the primary? [00:20:30] Speaker 00: What the primary interest here is that the government made a decision to promote the use of certain kinds of marks in commerce. [00:20:39] Speaker 00: And it made judgments about the kinds of marks it wants to promote. [00:20:42] Speaker 00: And that's particularly significant because this isn't sort of a set it and forget it program where the government sets up a program and then steps away. [00:20:52] Speaker 00: Instead, its own examiners are going to have to look at these marks to decide whether they're confusingly similar to others. [00:20:59] Speaker 00: The government is going to be [00:21:00] Speaker 00: publishing these marks, it's going to be issuing certificates in the name of the United States. [00:21:04] Speaker 00: And while that may not make it government speech, the close nexus between the government and this program gives the government an interest in not wanting to associate with certain marks, wanting to promote the use of marks that don't include necessarily this material. [00:21:19] Speaker 01: So to be clear, can I sum up the government interest that you are articulating as the government imprimatur on the mark? [00:21:25] Speaker 01: Is that really the way you would summarize it? [00:21:27] Speaker 01: Because you're [00:21:27] Speaker 01: Your point is that government publishes, although I'm not sure where it is you're publishing it, but you're claiming that you're publishing it somewhere, and the certificate in the name of the U.S., right? [00:21:36] Speaker 01: These are the tangible things that you're claiming. [00:21:40] Speaker 01: And then you said, you know, the government doesn't want to be associated with these marks. [00:21:46] Speaker 01: imprimatur of the government by virtue of the registration? [00:21:49] Speaker 00: I'm not claiming an imprimatur, but I am claiming that there is an association and a direct involvement by the government in providing the benefits that flow from the trademark program. [00:22:00] Speaker 00: The government plays a very active role. [00:22:02] Speaker 00: And if the government does, I think, have an interest in whether or not its examiners are forced to decide whether one drawing of genitalia is confusingly similar to another drawing of genitalia. [00:22:13] Speaker 00: And that is the kind of limitation I think the government... Just the protection of the trademark examiners. [00:22:19] Speaker 00: I think it's... The government is structuring a program here in a way... It would be hard to see that that's a substantial government interest to protect trademark examiners. [00:22:28] Speaker 00: I'm not claiming that there's a substantial interest in the eyes of the trademark examiners or their sensibilities, but I do think given the government's very active role in this program, we do have an interest in saying these are the sorts of marks we want to promote. [00:22:42] Speaker 00: And of course, [00:22:43] Speaker 00: What flows from that is also what sorts of marks the public are going to be used in public, which does tie back in to the protection of children. [00:22:52] Speaker 00: But I think it goes far beyond that to just sort of encouraging the use of certain marks the government has deemed to be most suitable. [00:23:00] Speaker 00: In section two of the Lanham Act, the government made a number of content-based judgments about the sorts of marks that could be included. [00:23:07] Speaker 00: The government said, we don't think flags of sovereign nations are the most suitable marks. [00:23:11] Speaker 00: The government made a judgment about coats of arms. [00:23:15] Speaker 00: Congress made a permissible judgment about misappropriation of identity. [00:23:20] Speaker 00: All of these things are content-based judgments. [00:23:23] Speaker 01: So what again is, see if you can put it in the form of a sentence, a single sentence with no commas or semi-colons. [00:23:31] Speaker 01: What is the government interest? [00:23:34] Speaker 00: Congress's primary interest is the promotion of the use of [00:23:40] Speaker 00: non-scandalous marks in commerce. [00:23:45] Speaker 01: But there are... So the government interest that is being protected here by banning these marks is the promotion... I want to write it down just like you said it, because I didn't come across clearly in the brief, so I want to make sure I know this substantial government interest. [00:24:00] Speaker 01: The promotion of non-scandalous marks in commerce. [00:24:06] Speaker 01: That's the government interest? [00:24:07] Speaker 00: That is certainly a primary governmental interest here. [00:24:10] Speaker 01: Is there a second primary government interest? [00:24:14] Speaker 00: Sure. [00:24:14] Speaker 00: Well, the other one we referred to in our briefs is traceable to sort of a history of public morals legislation that goes way back in the common law of having the government promote certain values. [00:24:28] Speaker 00: And that is something the government has reasonable authority to do. [00:24:32] Speaker 00: I'd emphasize here that this isn't a situation. [00:24:35] Speaker 01: So wait, the second one, I'm just trying to understand. [00:24:37] Speaker 01: You're using a lot of words. [00:24:40] Speaker 01: And yet, I have trouble understanding precisely the nature of the government interest. [00:24:45] Speaker 01: So see if you can bite-size it for me. [00:24:49] Speaker 01: What is that second government interest? [00:24:50] Speaker 01: I want to make sure I get each of these down. [00:24:52] Speaker 01: So what's the second one? [00:24:53] Speaker 00: So the second one is the public morals, the promotion. [00:25:02] Speaker 01: Public morals. [00:25:02] Speaker 01: Yeah. [00:25:03] Speaker 04: OK. [00:25:03] Speaker 04: Public morals, what does that mean in this context? [00:25:08] Speaker 04: I'm not sure he knows. [00:25:09] Speaker 04: the use of particular language. [00:25:13] Speaker 04: You mean it's to protect people from immoral language? [00:25:16] Speaker 04: What are we talking about? [00:25:18] Speaker 00: It's not protecting people from immoral language. [00:25:20] Speaker 00: What it is, is it's promoting commerce that doesn't include the use of source identifiers that are graphic sexual images or profanities that are going to be off-putting to a substantial subset of the public. [00:25:33] Speaker 01: OK, but that was your first one. [00:25:34] Speaker 01: Your number one was promotion of non-scandalous trademarks in commerce. [00:25:37] Speaker 01: Then you said there's a second primary interest, which you said something has to do with promoting morals. [00:25:43] Speaker 01: And so Jake is trying to follow up, and your answer was to repeat the first one again. [00:25:47] Speaker 01: So how is the second one different from the first one? [00:25:50] Speaker 00: I'm not sure that they separate entirely, Your Honor. [00:25:54] Speaker 00: I think that the history of public morals legislation, which is recounted in Justice Rehnquist's opinion in Barnes versus Glenn Theaters, does provide additional context for why [00:26:06] Speaker 04: a statute like this. [00:26:07] Speaker 04: What's an example of that kind of legislation? [00:26:10] Speaker 00: In Barnes, it was a public nudity law. [00:26:15] Speaker 00: It was a law restricting public nudity. [00:26:17] Speaker 00: But this is a restriction on trademark registration that dates back to 1905. [00:26:23] Speaker 00: And there's a long tradition in this country of allowing governmental programs to impose limits that exclude sexually charged material, that exclude profanities. [00:26:33] Speaker 00: And I think that is somewhat rooted in this common law tradition. [00:26:36] Speaker 00: I think the interests go well beyond just sort of that historical tradition. [00:26:40] Speaker 00: But I do think that further informs what I'm saying here about why the government has chosen to promote the use of some marks in commerce as source identifiers, but not these. [00:26:50] Speaker 01: Can we go back for a second? [00:26:51] Speaker 01: Did you give me a clean answer? [00:26:54] Speaker 01: Because I just checked back on my notes, and I don't see it written down about what the level of scrutiny is for this content-based restriction. [00:27:02] Speaker 01: Is it strict scrutiny? [00:27:03] Speaker 01: What I'm trying to get from you, what is the test that you believe I ought to be applying to the restriction to assess its constitutionality? [00:27:11] Speaker 00: Sure, Your Honor. [00:27:12] Speaker 00: I think it depends whether you disagree with us on sort of the headline argument and then there are potential fallbacks. [00:27:20] Speaker 00: Our general position is that this is a content-based limitation on a governmental program and that the relevant test comes from USAID. [00:27:29] Speaker 00: Now, I understand the panel may think that that view is foreclosed by the unbanked decision. [00:27:34] Speaker 01: Failing that, I think... Or just possibly wrong, as we also did in the unbanked decision. [00:27:39] Speaker 00: Yes, Your Honor. [00:27:40] Speaker 00: Failing that, I think the right framework is then to look at this, something like a limited public forum. [00:27:46] Speaker 01: That case law that... Okay, now I'm trying to figure out how this could be a limited public forum, because you used those words several times in your brief, and I... [00:27:56] Speaker 01: have surveyed every single public forum case of the last several decades. [00:28:02] Speaker 01: And I am having trouble understanding where in the limited public forum is here. [00:28:10] Speaker 01: Most of the limited public forum cases I read were at the Plaza of the Supreme Court, a military base, a prison facility. [00:28:18] Speaker 01: You see where I'm going. [00:28:19] Speaker 01: They are places. [00:28:21] Speaker 01: They are pieces of property. [00:28:23] Speaker 01: And a decision is made, was that meant to be an open and public [00:28:27] Speaker 01: place of property, or was that meant to be a limited place of property which gives the government a greater ability to therefore regulate speech in that space? [00:28:36] Speaker 01: Is that a fair assessment of your understanding of those kinds of cases? [00:28:39] Speaker 00: It's not, Your Honor, because the Rosenberger case from the Supreme Court back in the mid-90s referred to a fund as being a forum that was more metaphorical than, I don't remember the alternative, I think it was tangible. [00:28:52] Speaker 00: But the Supreme Court has recognized that a limited public forum can just be [00:28:57] Speaker 00: a metaphorical construct. [00:28:58] Speaker 00: And I'd note that Justice Alito, the reason we spoke so much about limited public fora in our brief is because Justice Alito was the one who raised that analogy. [00:29:09] Speaker 00: Again, we continue to think that the best way of thinking about this is a government program, but we're saying if you don't think that's right, if Justice Alito, for example, suggested that that was the right mode to potentially to be thinking about this through, then [00:29:22] Speaker 00: I'm just trying to offer how that case law would apply. [00:29:26] Speaker 01: How? [00:29:28] Speaker 01: What is the limited public forum? [00:29:30] Speaker 00: It would be the trademark registry, Your Honor. [00:29:32] Speaker 01: Okay, and I asked in the panel, and then I asked in the in-bank, what's the trademark registry? [00:29:39] Speaker 00: It's a database, Your Honor. [00:29:40] Speaker 01: An electronic database. [00:29:42] Speaker 00: That's correct. [00:29:42] Speaker 01: Where is it located? [00:29:44] Speaker 00: Do you want a URL, Your Honor? [00:29:46] Speaker 01: Am I able to access it from the PTO website? [00:29:49] Speaker 00: I believe so, but I can't confirm that right now. [00:29:52] Speaker 01: So it's a database? [00:29:53] Speaker 00: That's my understanding. [00:29:54] Speaker 01: And so does that mean a database registering all land in a county is also a limited public forum and therefore the government can control speech in that database? [00:30:08] Speaker 00: Absolutely not, Your Honor. [00:30:09] Speaker 00: And I think the key difference there is the application of the unconstitutional conditions doctrine, which is the significant constraint [00:30:16] Speaker 00: on the government's ability to abuse its power over something like a land registry to influence speech outside a program. [00:30:24] Speaker 00: And again, the USAID case provides the relevant framework for assessing whether or not the unconstitutional conditions doctrine would apply here. [00:30:34] Speaker 01: And do you have a better answer, possibly now, than the government had a year or so ago to why all of this wouldn't apply identically in copyright cases? [00:30:47] Speaker 00: Yes, Your Honor. [00:30:48] Speaker 01: It couldn't have gotten worse, so surely you had a better answer. [00:30:50] Speaker 01: Go ahead, or at least the same answer. [00:30:53] Speaker 00: So the reason the copyright example has such force is because copyright's the engine of free expression. [00:30:59] Speaker 00: Everybody reacts to copyright so strongly and says it would be completely impermissible to do this in copyright, I think, because everybody knows that copyright has this unique function of promoting expression. [00:31:12] Speaker 00: And there's doctrinal significance to the fact [00:31:15] Speaker 00: that the copyright program is an engine of free expression, while the trademark program is principally about promoting source identification of goods and commerce. [00:31:24] Speaker 00: And where the rubber meets the road on that is in the USAID context, because what USAID says is the government, as a starting point, gets to say these are the purposes of our program. [00:31:36] Speaker 00: But USAID also recognizes that you don't want that to become a tautology, because otherwise the government [00:31:42] Speaker 00: could always read into its programs and say, oh, one of my additional conditions is something that really just reaches outside the program and is trying to leverage the program for improper purposes. [00:31:54] Speaker 00: So what USAID says is, and both Alito and Kennedy's opinions in TAM referenced USAID, and Kennedy says it's a complex analysis. [00:32:04] Speaker 00: Alito says it's tricky. [00:32:05] Speaker 00: It's bound up in the facts of the very particular program at issue. [00:32:10] Speaker 00: I think when you're talking about a program like copyright that's the engine of free expression, if you tried to say no scandalous copyrights, that would be so in tension with the primary purpose of the copyright program that a court might well, under USAID, say that's impermissible, that's an unconstitutional condition because what you're doing here is really reaching outside the program. [00:32:33] Speaker 00: Because trademark serves a very different commercial function, I think Congress has more latitude to make judgments about the kinds of marks it thinks are suitable or best suited. [00:32:43] Speaker 04: How much does the government rely on the fact that we're dealing with commercial speech here? [00:32:49] Speaker 04: I mean, for example, if in Cohen versus California, instead of trying to ban the t-shirt that said fuck the draft on it, they had tried to register that as a trademark. [00:33:01] Speaker 04: and so that they could sell shirts to raise money for the cause, whatever the cause was. [00:33:08] Speaker 04: Would that, in your view, be a permissible thing for the trademark office to do, to say we're not going to allow you to register that mark? [00:33:17] Speaker 00: I don't think you need to reach that question today, but truthfully I think that it would be permissible to deny that mark because [00:33:26] Speaker 00: Again, I think I was speaking a little while ago about the Texas flag burning example. [00:33:32] Speaker 00: And the idea is when the government adopts a neutral rule, it's viewpoint neutral, it's permissible, even if it has an incidental effect on expression, that doesn't mean that the rule is impermissible or even unconstitutional. [00:33:47] Speaker 04: So they can discourage it as long as they don't prohibit it? [00:33:50] Speaker 00: Well, if they're not targeting it. [00:33:52] Speaker 00: I think some of this goes down to targeting, and that's what RAB [00:33:55] Speaker 00: RAV speaks directly to this sort of problem. [00:33:58] Speaker 00: And what it says is, if the government is adopting, for a permissible purpose, a neutral rule, the fact that it may, in some context, burden expressive speech doesn't mean, as long as the government wasn't targeting that speech, wasn't engaging in viewpoint discrimination, or wasn't going out to target that speech specifically. [00:34:17] Speaker 01: Wait, but you are targeting speech. [00:34:19] Speaker 01: This is not a content neutral restriction. [00:34:22] Speaker 00: It's certainly not content neutral, but it's viewpoint neutral. [00:34:25] Speaker 01: Well, okay, but it's not content neutral. [00:34:27] Speaker 00: If I said content neutral, then I misspoke, Your Honor, and I apologize. [00:34:32] Speaker 04: So what is the commercial advertising nature of this afternoon? [00:34:36] Speaker 04: Let's assume, and I know that Brunetti argues otherwise, but let's assume that there was no claim here to an expressive component of this. [00:34:45] Speaker 04: This was just purely commercial advertising. [00:34:48] Speaker 04: We sell [00:34:49] Speaker 04: more close if we use an indecent logo and because it gets attention. [00:35:00] Speaker 04: Is that part of the government's argument or not part of the government's argument? [00:35:03] Speaker 00: Yes, we have argued central Hudson and to the extent that you don't agree with us on these alternative frameworks then I think the next place you end up is with just sort of a straight central Hudson analysis because this is commercial speech. [00:35:17] Speaker 00: And therefore, we need an interest. [00:35:19] Speaker 00: We spent a while with me trying to articulate the governmental interests served here. [00:35:25] Speaker 00: And I do think there's sufficient tailoring to survive central Hudson reveal. [00:35:28] Speaker 02: How is it narrowly tailored when it could exclude things like F, the draft? [00:35:37] Speaker 02: I'm having trouble with the narrow tailoring or something where maybe the idea is that there's certain words you could have, like but, but you couldn't have as, for example. [00:35:48] Speaker 02: I mean, so how is it narrowly tailored? [00:35:51] Speaker 00: So I think in the tailoring, the relevant question that the test that PTO has been using is, is a substantial composite of the public going to react to this as vulgar. [00:36:02] Speaker 00: And that's the test this court [00:36:03] Speaker 00: repeated in Fox. [00:36:05] Speaker 00: That's where, that was affirmed in Fox and that's the test PTO applied here. [00:36:09] Speaker 00: And I think there is, because PTO is not making its own subjective judgments about this material and is doing its best to make a judgment about how the public at large will react to this mark, I do think that that's closely tied to the government's interest in promoting a particular kind of commerce. [00:36:32] Speaker 01: I mean, you agree that at least Judge Alito's opinion rejects the government's USAID argument here? [00:36:41] Speaker 00: I would agree, though Justice Alito holds that it's not a government program, yes. [00:36:50] Speaker 01: The Supreme Court uses the words offensive or offended, offending speech 21 times. [00:36:58] Speaker 01: They span all of the opinions that it issued in this case. [00:37:01] Speaker 01: It's something that we brought to your attention in the order that we issued. [00:37:06] Speaker 01: Certainly the word offensive in the Supreme Court opinion is broader than just viewpoint discriminatory speech, isn't it? [00:37:17] Speaker 00: I do not agree with that, Your Honor. [00:37:18] Speaker 00: I think in context, it very much was speaking to viewpoint discriminatory. [00:37:23] Speaker 00: Because I think in context, what the Supreme Court said is, if there's an otherwise includable subject, [00:37:29] Speaker 00: And there are two positions on that. [00:37:31] Speaker 00: And one perspective is offensive, and the other perspective is not. [00:37:35] Speaker 00: You cannot exclude one perspective on the grounds that it's offensive. [00:37:39] Speaker 00: But there's a raft of precedent from the Supreme Court and from the Court of Appeals we've cited in our brief that speech isn't uniquely privileged because it has profanity in it, because it has nudity or sexuality. [00:37:52] Speaker 00: And I don't think Tam can fairly be read to cast doubt on all of that. [00:37:55] Speaker 00: I think offensive there [00:37:57] Speaker 00: means offensive viewpoint, not offensive subject matter. [00:38:01] Speaker 00: And indeed, if the court had meant that, then the government entities would lose all power or would face huge obstacles to preventing profanity from being printed on the side of press advertisements. [00:38:16] Speaker 00: I think in context and especially in light of the list of cases that Justice Alito cited in supporting that point, [00:38:24] Speaker 00: all of them get to a fundamental idea of the government trying to target one side of the debate. [00:38:29] Speaker 00: And that's not what's happening here. [00:38:31] Speaker 01: What is your test for scandalous? [00:38:36] Speaker 01: Judge Steick had suggested that perhaps the word scandalous and immoral could be narrowed so as not to embrace anything that would clearly be out in light of the Tam decision, for example. [00:38:52] Speaker 01: What is your view of what the legal test for when something scandalous or immoral ought to be? [00:38:57] Speaker 01: Because that was the rejection here, scandalous or immoral. [00:39:00] Speaker 01: So what is your view of what that test is? [00:39:04] Speaker 00: So I think at a minimum, it reaches the stuff that Judge Dyke was asking about at the very beginning of the argument. [00:39:10] Speaker 00: At an absolute minimum, I think it covers the kinds of words that were in Pacifica, graphic depictions of sex, genitalia, material like that. [00:39:20] Speaker 00: I think [00:39:21] Speaker 00: We know from TAM that what it cannot properly reach is material that's merely disparaging. [00:39:27] Speaker 00: And accordingly, something that is disparaging is protected, because if you target it on that basis, it would be viewpoint discrimination. [00:39:37] Speaker 00: But I do think there's a permissible core of this provision. [00:39:41] Speaker 00: I think PTO's test, to the extent that it doesn't reach material just for being disparaging, the test that [00:39:46] Speaker 00: that the PTO has long applied in this court endorsed in Ray Fox is acceptable. [00:39:51] Speaker 01: So your opponent used a trademark, God does not have, and then it's a male genitalia basically, right? [00:40:00] Speaker 01: That is a trademark that was rejected as immoral or scandalous. [00:40:04] Speaker 01: Are you saying that the government can reject the word penis every time it's ever used? [00:40:11] Speaker 01: What if it's for a penile implant or something? [00:40:14] Speaker 01: You can see there are sort of less offensive uses of the word to the average person. [00:40:21] Speaker 01: So I understand the word F-U-C-K, banned. [00:40:24] Speaker 01: Nobody can use it. [00:40:25] Speaker 01: You can't say America is F-U-C-K. [00:40:28] Speaker 01: You can't use that word ever anywhere. [00:40:30] Speaker 01: But what about breast or body part language? [00:40:35] Speaker 01: Because some of those are rejected and others are not. [00:40:39] Speaker 01: We did our own little survey. [00:40:41] Speaker 01: We pulled every single rejection for immoral and scandalous over the last several decades. [00:40:46] Speaker 01: And it was shocking the level of inconsistency among the rejection versus acceptances of same words like that. [00:40:52] Speaker 01: I get F-U-C-K. [00:40:54] Speaker 01: What I'm trying to figure out is what's the test? [00:40:56] Speaker 01: Because you know what? [00:40:57] Speaker 01: If I decide F-U-C-K, that's helpful in this case. [00:41:00] Speaker 01: But it's not helpful to the PTO and all the examiners who are going to have to decide every other case, which nobody's going to apply for F-U-C-K. [00:41:06] Speaker 01: You know what I mean? [00:41:08] Speaker 01: And so I'm trying to understand what that means. [00:41:10] Speaker 00: I mean, what do we do with that God doesn't have a... I do think that the relevant test has to be to look at that mark in the context of the goods or services, as PTO always does when it evaluates a trademark, and make a determination about whether it falls within this provision. [00:41:31] Speaker 00: And I understand, to the extent the Court has concerns about [00:41:35] Speaker 00: past consistency, I think it bears note that PTO has been operating for 35 years against the backdrop of a holding of this court's predecessor that there wasn't a due process implication to this. [00:41:48] Speaker 00: That PTO certainly endeavors to have its results be as consistent as possible, but [00:41:53] Speaker 00: when you're dealing with as many applications as possible. [00:41:55] Speaker 01: But forget about the inconsistency for now. [00:41:58] Speaker 01: That wasn't meant to be the focus of my question. [00:41:59] Speaker 01: It was more meant to be, how do I understand the words scandalous or immoral and their coverage? [00:42:06] Speaker 01: How are those tests going to be applied? [00:42:09] Speaker 01: Because, for example, I understand the word FUCK is all for anybody under any context. [00:42:14] Speaker 01: Doesn't matter if you're saying something's good about it, something's bad about it. [00:42:16] Speaker 01: You just can't use that word. [00:42:19] Speaker 01: but the word penis gets used. [00:42:21] Speaker 01: So how come it can be used in some circumstances, but not others? [00:42:24] Speaker 01: Or are you saying it should never, do you agree that the government has to block the word entirely or it can allow it in some circumstances and not others? [00:42:35] Speaker 00: I think you can make a judgment based on the goods or services as to how the mark is going to be understood. [00:42:42] Speaker 00: So for example, if there is, there are some words. [00:42:45] Speaker 01: In either case, the word penis means male genitalia. [00:42:47] Speaker 01: There's no question about how it's going to be understood. [00:42:49] Speaker 01: That's what it means. [00:42:50] Speaker 01: It always means that. [00:42:51] Speaker 01: This isn't like some word play, friends you can trust nonsense or whatever. [00:42:55] Speaker 01: So it means the same thing every time it's used. [00:42:59] Speaker 01: Sometimes it's used in a way that offends people and other times it's used in a medically appropriate way or whatever else. [00:43:06] Speaker 01: So you said content means you can never use it. [00:43:09] Speaker 01: You can't use it positive, you can't use it negative. [00:43:12] Speaker 01: But that doesn't seem to be the case with things like that. [00:43:14] Speaker 01: So how do you justify that or explain it? [00:43:18] Speaker 00: I think to the extent that it's necessary to construe the statute more narrowly in order to preserve it, as Judge Dyke was saying, that that's certainly something that would be appropriate for this Court to do. [00:43:33] Speaker 04: Well, I mean, that sort of distinction has been made under the Pacifica case at the FCC between uses of these words that's indecent and uses that are clinical or merely descriptive. [00:43:47] Speaker 00: And I do think that is something that PTO examiners might well be positioned to do. [00:43:52] Speaker 00: But if this court was concerned about the outer reaches of it, I just want to make sure that this court preserves the core and doesn't throw the baby out with the bathwater in issuing any ruling on that. [00:44:15] Speaker 01: there just seemed to be a silo of rejections when we did our survey that I would call of a religious nature. [00:44:21] Speaker 01: It seems that a lot of things are deemed immoral or scandalous, like Madonna for wine. [00:44:27] Speaker 01: It seems like the more likely a mark is to have some religious potentially be offensive to a group within a religion, the more likely it is to be immoral and scandalous. [00:44:40] Speaker 01: It seems like there were silos, right? [00:44:41] Speaker 01: There's the sex marks. [00:44:42] Speaker 01: And then I'll call them the blasphemous marks. [00:44:46] Speaker 01: And so I'm wondering about those blasphemous marks and whether or not they are still within a constitutional view of a scandalous and immoral definition. [00:44:57] Speaker 00: I don't think it would be appropriate in light of TAM for the government to be issuing viewpoint-based denials of those marks. [00:45:08] Speaker 00: But I think I'm hesitant to opine on blasphemous marks as a category. [00:45:12] Speaker 00: each of those marks would need to be considered in light of the specific record and the goods and services. [00:45:19] Speaker 04: So if the government under Cohen against California doesn't have an interest in suppressing the use of indecent speech insofar as it's directed to adults, forget about children, why does it have an interest in discouraging it? [00:45:38] Speaker 00: I think the right way to think about this is just promoting the use in commerce of non-scandalous marks. [00:45:45] Speaker 00: Cohen's distinguishable in a couple of ways. [00:45:48] Speaker 00: One key thing to bear in mind about the Cohen case, and the majority in Cohen took pains to stress this, is the rule there didn't say you can't wear the profane jacket in the courthouse. [00:46:00] Speaker 00: The rule said you can't wear that profane jacket anywhere in public in California. [00:46:04] Speaker 00: And the opinion even suggests, if the rule had been, you can't just wear that in the courthouse, that it would be a very different case and the outcome might be very different. [00:46:13] Speaker 00: Here, similarly, we are not saying you can never say these words, you can never print these words on t-shirts, you can never call your company something. [00:46:20] Speaker 00: But if you are going to participate in the Federal Trademark Registration Program, these are the criteria for participation. [00:46:28] Speaker 01: Do you agree with opposing counsel's analysis of Pacifica [00:46:34] Speaker 01: that it isn't prohibiting those words, the filthy words. [00:46:39] Speaker 01: It's a time and place restriction. [00:46:42] Speaker 00: My recollection is Pacifica does apply on its terms to specific hours of the day. [00:46:48] Speaker 01: Like two o'clock in the afternoon? [00:46:49] Speaker 01: Yeah. [00:46:50] Speaker 01: and the rationale and do you also agree that the Supreme Court in that decision went to Great Plains to explain how broadcasting is different than other things because broadcasting comes into your home whether you invite it or not really it's there it's coming across in your living room you can't really avoid it at two o'clock in the afternoon if you don't know it's coming and there it is right how given the narrowness if that's your understanding as well given the narrowness [00:47:20] Speaker 01: of this decision, which didn't prohibit the broadcasting of these words in general, but only in a very narrow space because of the desire to protect children, how does a trademark registration scheme, which rejects them altogether, comport with the Supreme Court's very narrow and clearly delineated, limited view of the prohibition in Pacifica? [00:47:41] Speaker 00: I don't think you can just read Pacifica as confined to its facts. [00:47:46] Speaker 00: There was an analysis of [00:47:47] Speaker 00: these materials as generally lacking in scientific, political, or artistic merit. [00:47:52] Speaker 00: There's been repeated descriptions of them by the Supreme Court as lying at the outer periphery of the First Amendment. [00:47:57] Speaker 00: And to be sure, in Pacifica, one of the factors was the fact that it invaded the home. [00:48:02] Speaker 00: But if you look at the Supreme Court's actual analysis and then how it's been repeated in cases like FCC versus Fox, I don't think you can read Pacifica confined to that context. [00:48:13] Speaker 00: Again, I think the trademark program, it's important to remember how limited this way. [00:48:16] Speaker 00: We are not going out in the world and banning any speech at all. [00:48:21] Speaker 00: Mr. Bernetti can say anything he wants to, anywhere he wants to. [00:48:24] Speaker 00: He can put any message he wants to on a t-shirt. [00:48:27] Speaker 00: He can call his company anything he wants to. [00:48:29] Speaker 04: And if... But you would have to agree, wouldn't you, that banning the trademark has the effect of restricting the speech in the sense that trademarks are not likely to be used pervasively if [00:48:42] Speaker 04: they can't be registered. [00:48:44] Speaker 00: There may be some incidental effect. [00:48:47] Speaker 04: But again, even if Mr. It's more than incidental, isn't it? [00:48:50] Speaker 04: Because where you have efforts to register in decent trademarks and people are not able to register the trademark, they basically don't find that it's commercially feasible to use it, right? [00:49:04] Speaker 00: There are certainly significant benefits that flow from trademark registration. [00:49:09] Speaker 00: I think that it [00:49:11] Speaker 00: producers are likely to pick those marks that they'll be able to get federal registration for. [00:49:15] Speaker 00: Yes. [00:49:18] Speaker 00: But all of that's to say, I do think the fact that there's no ban on speech here is relevant, and certainly that Mr. Burnetti can put any message he wants on a t-shirt, and as long as he picks something that comports with the standards set by Congress, he can register that trademark. [00:49:39] Speaker 04: Okay. [00:49:39] Speaker 04: Anything else? [00:49:42] Speaker 04: Okay. [00:49:43] Speaker 04: Thank you. [00:49:43] Speaker 04: Thank you. [00:49:45] Speaker 04: Mr. Summer. [00:49:46] Speaker 03: Thank you. [00:49:47] Speaker 03: I'm going to sort of jump around because we've been sort of jumping around, but I have some points I want to make. [00:49:51] Speaker 03: It says, I agree that we look not only at the Mattel's decision, but also its analysis. [00:49:58] Speaker 03: And its analysis was quite simple. [00:50:00] Speaker 03: You can't refuse a trademark because it's offensive. [00:50:05] Speaker 03: The point about [00:50:06] Speaker 03: explicit pictures of genitalia. [00:50:09] Speaker 04: I don't think the Supreme Court in using the word offensive in that context was talking about offensive in the sense of indecent material. [00:50:18] Speaker 04: They said again and again, we're not reaching other provisions of the Lanham Act. [00:50:23] Speaker 04: Absolutely. [00:50:24] Speaker 04: I don't think they were deciding our case. [00:50:26] Speaker 03: No, they were not deciding our case. [00:50:28] Speaker 03: That was not the decision it would have been dictated if they had. [00:50:32] Speaker 03: But the analysis makes it absolutely clear [00:50:35] Speaker 03: that offensiveness of the listener is not grounds to refuse a registration. [00:50:41] Speaker 03: But we can look more specifically. [00:50:44] Speaker 03: You know, the government argues about, you know, explicit materials. [00:50:49] Speaker 03: There's nothing that I'm suggesting that illegal and obscene materials are illegal. [00:50:54] Speaker 03: And so there's nothing to suggest that those should be registered. [00:50:58] Speaker 03: The government talks about the purpose of the statute. [00:51:01] Speaker 03: I always thought the purpose of the trademark statute [00:51:03] Speaker 03: was protect consumers from confusion and to protect the rights of trademark owners. [00:51:10] Speaker 03: This provision, from what little legislative history we have, was just because they didn't want to have Abraham Lincoln associated with Jen. [00:51:17] Speaker 03: So it's basically, and that's the speech component that we have today. [00:51:23] Speaker 03: The government's arguments as to compelling interests, I guess it's dropped the interference with commerce argument that made its brief. [00:51:32] Speaker 03: and the interest in the public morals, I don't know what other area of government where morals are the government, US government is trying to regulate the morals. [00:51:42] Speaker 03: Besides, what are morals? [00:51:43] Speaker 03: Who's going to figure them out? [00:51:44] Speaker 03: And in fact, that's clear from Supreme Court jurisprudence from Pacifica that they weren't trying to regulate the morals of the government. [00:51:50] Speaker 03: You know, dancing, pornography, there are lots of things that are immoral that are constitutional. [00:51:57] Speaker 04: Well, I mean, the argument here [00:51:59] Speaker 04: would be that if you register something as a trademark, it's going to be pervasively distributed. [00:52:04] Speaker 04: It's going to be all over billboards and magazines and the internet. [00:52:13] Speaker 03: Well, that's a good question to ask, because I think that... Wait, wait, wait, wait. [00:52:16] Speaker 04: You have to let me... Okay. [00:52:18] Speaker 04: So does the government have an interest in not promoting that kind of pervasive dissemination of indecent [00:52:29] Speaker 04: material. [00:52:30] Speaker 03: That is not its role. [00:52:32] Speaker 03: And Pacifica makes it clear that that speech, and the people have the right to make that speech, and it's not the government's role. [00:52:40] Speaker 03: I think the analogy for copyright is the exact analogy. [00:52:43] Speaker 03: And the government tries to make it different. [00:52:45] Speaker 03: And they did start from sort of different premises. [00:52:48] Speaker 03: But in both cases, because like you compare Muslim patriot with stop the Islamization of America, exact opposites. [00:52:57] Speaker 03: Clearly, both are expecting viewpoints. [00:53:01] Speaker 03: Trademarks range from purely commercial, like Exxon, I guess, all the way up to ones that are clearly, inextricably intertwined with the organization, especially like with non-profit and political organizations. [00:53:15] Speaker 03: The trademark is inextricably intertwined. [00:53:18] Speaker 03: Then you have copyrights, O's and 1's for software, all the way up to James Joyce and the [00:53:27] Speaker 03: political speeches. [00:53:29] Speaker 03: So neither are one or the other. [00:53:33] Speaker 03: And, in fact, both statutes are the same. [00:53:35] Speaker 03: And this is the important point that I, in my very first brief, I talked about the state of Pennsylvania refusing to register a corporate name that says, I choose Health Productions LLC, is this is merely an administrative statute. [00:53:52] Speaker 03: You check the box as you get a registration. [00:53:54] Speaker 03: The government is not like [00:53:56] Speaker 03: for example, in some other countries where the government actually promotes one industry. [00:54:00] Speaker 03: This statute is just to create a lame playing field for everybody to play on. [00:54:05] Speaker 03: And it's never intended to do anything. [00:54:07] Speaker 01: In this case, do you agree that what the government is doing is regulating the expressive component of your client's speech because it has chosen to prohibit it precisely because it views it as having an offensive word? [00:54:21] Speaker 03: Well, yes. [00:54:22] Speaker 01: I mean, the... Regardless of what your client intended the word to mean or not mean, the government is really going straight after the expression, the nature of the expression. [00:54:32] Speaker 03: Well, it is going after the expression. [00:54:33] Speaker 03: I grant you that. [00:54:34] Speaker 03: And the record below says that. [00:54:37] Speaker 03: And it's not only, you know, his, what his word by itself says, but it's also everything that the board found was related because you take like the word pussy that sometimes refused, sometimes granted, [00:54:49] Speaker 03: So you have to look beyond just those words or slants. [00:54:53] Speaker 03: Slants could be something completely innocuous or it could be something disparaging. [00:54:57] Speaker 03: So you have to look at not only what the actual word itself that's being sought to register, but the broader picture. [00:55:04] Speaker 03: And so clearly he's being refused registration because of that. [00:55:10] Speaker 03: But that sort of raises the question you ask is how can the statute be narrowed? [00:55:15] Speaker 03: And well, first of all, I don't think it can be. [00:55:18] Speaker 03: because it includes all the religious things, and that, you know, frankly, it brings into, you know, freedom of religion issues because the government has to be picking sides. [00:55:25] Speaker 04: Well, I mean, we could say that it has to be limited to indecency, which doesn't incorporate blasphemy. [00:55:32] Speaker 03: But that isn't what the statute says. [00:55:34] Speaker 03: And, I mean, basically what you're saying is we should say that it's the seven dirty words. [00:55:39] Speaker 03: That's, in effect, what the government's saying. [00:55:42] Speaker 04: That would be a possible construction of the statute if it would avoid constitutional code. [00:55:47] Speaker 03: Well, they're saying a little broader what I call the PES words. [00:55:50] Speaker 03: But still, I mean, first of all, you have the point that it's over broad and it's vague. [00:55:57] Speaker 03: And the history, I mean, in my brief, I attached many examples. [00:56:00] Speaker 03: And I assume you found many examples. [00:56:02] Speaker 04: So if we narrow it, if we narrow it, I know you think we should. [00:56:06] Speaker 04: If we narrow it, why is it not constitutional? [00:56:10] Speaker 03: Well, because two reasons. [00:56:12] Speaker 03: One is because it grants unfettered discretion to the PTO. [00:56:15] Speaker 03: And we've had 70 years of experience. [00:56:17] Speaker 03: And why should we think that all of a sudden the PTO can get it right and be logical? [00:56:21] Speaker 03: It's a different standard than they've been working with. [00:56:25] Speaker 03: And moreover, it's expression. [00:56:28] Speaker 03: In the Elmbandt decision, the government's basically arguing is that it should be topic regulation. [00:56:37] Speaker 03: That still should be strict scrutiny. [00:56:41] Speaker 03: But even more so, my client is expressing a view. [00:56:43] Speaker 03: This is no different than Cohen versus California. [00:56:46] Speaker 01: And this isn't a restriction like Pacifica, where it's at 2 o'clock in the afternoon, not the rest of the day, and only meant because that's children cartoon watching time or something. [00:56:56] Speaker 01: This isn't a narrowly tailored regulation. [00:56:59] Speaker 01: This is the government can prohibit its trademark and therefore anywhere. [00:57:03] Speaker 01: All times, every place. [00:57:03] Speaker 01: Any time, any place. [00:57:04] Speaker 03: Yeah. [00:57:05] Speaker 03: And not that I'm supporting pornography, but they take the position that you can't use [00:57:09] Speaker 03: bad words in connection with pornographic websites. [00:57:12] Speaker 03: And so this is not Pacifica. [00:57:14] Speaker 03: This is so much further than Pacifica that it's unimaginable the government can be arguing that. [00:57:19] Speaker 04: Well, I mean, I guess the counter argument is that it's not that broad because there is the possibility of abusing the mark without the federal registration. [00:57:31] Speaker 03: Well, I thought that issue we've taken care of in TAM and in Mattel, that the burdens on the person who doesn't have a registration [00:57:39] Speaker 03: are so significant that it is of the same constitutional significance. [00:57:45] Speaker 03: And when I was here the last time, I argued many of those things. [00:57:48] Speaker 03: And I don't really need to repeat them. [00:57:49] Speaker 03: But I mean, I think it's clear from the Supreme Court and from the Ambach decision that the Court believes that the refusal to register is very significant. [00:57:58] Speaker 01: It can amount to a prohibition. [00:58:00] Speaker 03: Yes. [00:58:05] Speaker 03: The government cites Perry. [00:58:07] Speaker 03: I don't think that's the right case. [00:58:08] Speaker 03: bad dog is the Second Circuit dealing with the exact issue here. [00:58:13] Speaker 03: And not only do we have bad dog, but there's the, this could be extended. [00:58:18] Speaker 03: If this is constitutional, this can be extended far beyond. [00:58:22] Speaker 03: And like, there's a case out of the Second Circuit that I cited in my amicus brief in Supreme Court, I don't know if it's cited here, where the government said, we'll give you a building permit for your restaurant, but you have to change the name so it's not Samba's. [00:58:35] Speaker 03: And so if this provision is constitutional, then states can start doing their own regulation. [00:58:42] Speaker 03: The, you know, the District of Columbia could say, we are not going to allow you to sell products with the four-letter words, even if it's in a gay gift store like Spencer's. [00:58:52] Speaker 03: And the, so local governments, I mean, you know, if you're trying to narrow it really to just to the seven bad words, my argument's a little bit less sexy because even more broadly, local governments could, [00:59:05] Speaker 03: de facto prohibit Planned Parenthood or pro-life because they think it's scandalous. [00:59:11] Speaker 03: And so I think we have to look at the whole statute. [00:59:14] Speaker 03: It is scandalous. [00:59:15] Speaker 03: I don't see how we narrow it to the seven dirty words or profane, excursatory, sexual unless Congress decides to do so. [00:59:24] Speaker 03: And the statute, as written, is facial and constitutional. [00:59:28] Speaker 03: It's vague. [00:59:29] Speaker 03: It's unfettered discretion to the PTO. [00:59:35] Speaker 03: And it is prohibiting the expression of viewpoints. [00:59:38] Speaker 03: My client is so unique in that he's been using his mark for more than 20 years. [00:59:44] Speaker 03: Everybody else just gives up. [00:59:46] Speaker 03: But when I tell people, the two people I really rely on is Justice Harlan. [00:59:52] Speaker 03: And like I say, I quoted exactly what he said, which probably bears repeating, is some words have dictionary explanatory definitions, like revolutionary, you can explain. [01:00:02] Speaker 03: but other words have an emotional expression. [01:00:06] Speaker 03: And Mike, and so that is, he says that's emotion, that's protected speech, that should be protected. [01:00:13] Speaker 04: Okay, I think we're about out of time. [01:00:15] Speaker 03: Yeah, okay. [01:00:16] Speaker 03: And then just real quickly, I mean, George Carlin made it very clear that he was commenting on, and that's one part of the decision in Pacifica that I don't agree on, that, you know, George Carlin was not trying to make a viewpoint, and I think he obviously was. [01:00:31] Speaker 04: Thank both counsels. [01:00:32] Speaker 04: The case is submitted. [01:00:33] Speaker 04: That concludes our session for the day.