1 00:00:00,040 --> 00:00:01,840 Speaker 1: It was a winning day for free speech at the 2 00:00:01,880 --> 00:00:05,480 Speaker 1: Supreme Court on Monday. In two cases, the Justice upheld 3 00:00:05,519 --> 00:00:09,039 Speaker 1: First Amendment protections. In the first case, the Justice found 4 00:00:09,039 --> 00:00:11,799 Speaker 1: there was no hate speech exception to the First Amendment. 5 00:00:12,119 --> 00:00:14,560 Speaker 1: In the second, the court found even a registered sex 6 00:00:14,600 --> 00:00:17,560 Speaker 1: offender had a right to use social media. The first 7 00:00:17,560 --> 00:00:20,960 Speaker 1: case involved the Asian American rock band called the Slants 8 00:00:21,000 --> 00:00:23,840 Speaker 1: Simon Tam. The band's founder has said his band's name 9 00:00:24,280 --> 00:00:26,840 Speaker 1: was designed to reclaim a term that has been an 10 00:00:26,880 --> 00:00:30,960 Speaker 1: anti Asian slur, but the US Patent and Trademark Office 11 00:00:31,000 --> 00:00:34,360 Speaker 1: refused to register the trademark after concluding the name was 12 00:00:34,440 --> 00:00:38,760 Speaker 1: disparaging to a substantial number of people of Asian ancestry. 13 00:00:38,800 --> 00:00:41,479 Speaker 1: In the unanimous opinion, the Court ruled that the federal 14 00:00:41,520 --> 00:00:46,800 Speaker 1: government can't constitutionally withhold legal protections for trademarks seen as disparaging, 15 00:00:47,200 --> 00:00:49,440 Speaker 1: throwing out a seventy year old provision as a free 16 00:00:49,479 --> 00:00:53,360 Speaker 1: speech violation. Joining us are the attorneys who represented Tam 17 00:00:53,360 --> 00:00:57,720 Speaker 1: and The Slants, Ronald Coleman and John Connell at Archer Law. 18 00:00:58,640 --> 00:01:02,040 Speaker 1: Ronald tell us about AM's efforts to get his band's 19 00:01:02,120 --> 00:01:08,240 Speaker 1: name trademarked. This is Ron Coleman I'll answer first, because 20 00:01:08,240 --> 00:01:10,880 Speaker 1: I was involved on the on the front end of 21 00:01:10,959 --> 00:01:16,880 Speaker 1: the case. Um. We actually took over the registration process 22 00:01:16,959 --> 00:01:21,959 Speaker 1: after his his prior lawyer, who who did a tremendous 23 00:01:22,240 --> 00:01:26,200 Speaker 1: job going up against what was very clearly a very 24 00:01:26,240 --> 00:01:31,920 Speaker 1: predetermined outcome. UM contacted me and asked whether you know 25 00:01:31,959 --> 00:01:34,880 Speaker 1: we might have a different approach, introduced me to Simon 26 00:01:34,920 --> 00:01:38,319 Speaker 1: Tam and we did. We made some changes in tactically 27 00:01:38,319 --> 00:01:42,160 Speaker 1: speaking and how we thought the registration might be accepted 28 00:01:42,160 --> 00:01:46,560 Speaker 1: by the PTO, trying to make it not particularly ethnic, 29 00:01:46,640 --> 00:01:52,920 Speaker 1: not offensive, not anything that could be taken as pejorative. Unfortunately, 30 00:01:53,000 --> 00:01:56,360 Speaker 1: what we found was that the PTOs position was that 31 00:01:56,400 --> 00:02:00,600 Speaker 1: as long as Simon Tam, our client was the applicants, 32 00:02:01,440 --> 00:02:03,880 Speaker 1: his use of the word the slants was going to 33 00:02:03,920 --> 00:02:09,679 Speaker 1: be deemed uh uh unacceptable. Lot of section to it 34 00:02:10,080 --> 00:02:15,320 Speaker 1: was found to be a the sparaging use of a 35 00:02:15,360 --> 00:02:19,240 Speaker 1: word that he was trying to He was an what 36 00:02:19,360 --> 00:02:26,600 Speaker 1: he described as as a proud way John and so John, John, 37 00:02:26,639 --> 00:02:30,720 Speaker 1: I just wanted to get into more about Simon and 38 00:02:30,880 --> 00:02:34,520 Speaker 1: why he felt this way and why he, you know, 39 00:02:34,639 --> 00:02:39,800 Speaker 1: waged with you this long battle. Well, I think Simon 40 00:02:39,880 --> 00:02:44,480 Speaker 1: feels very strongly that UM language is a powerful tool 41 00:02:44,560 --> 00:02:48,079 Speaker 1: in our society, both for good and for bad. And 42 00:02:48,560 --> 00:02:54,640 Speaker 1: Simon felt very strongly that UM, the slur which the 43 00:02:54,800 --> 00:02:57,960 Speaker 1: term the slants had been historically, was one that he 44 00:02:58,080 --> 00:03:02,800 Speaker 1: wanted to reclaim, much like other groups ethnic, social, and 45 00:03:02,840 --> 00:03:08,400 Speaker 1: otherwise have similarly reappropriated UH slurs that were directed at 46 00:03:08,440 --> 00:03:12,200 Speaker 1: their groups as well. Now Ronald tell us about the 47 00:03:12,480 --> 00:03:19,120 Speaker 1: Landamak provision against offensive trademarks, Well, there are a number 48 00:03:19,160 --> 00:03:21,760 Speaker 1: of trademarks that, under section two way are not allowed 49 00:03:21,800 --> 00:03:24,919 Speaker 1: to be registered, or or at least we're not allowed 50 00:03:24,960 --> 00:03:30,520 Speaker 1: to be registered. They prohibit the registration of disparaging trademarks 51 00:03:30,680 --> 00:03:37,720 Speaker 1: offensive and UM, scandalous trademarks, and moral trademarks UM. What 52 00:03:37,800 --> 00:03:41,400 Speaker 1: we got hung up on was the disparagement antidisparagement clause. 53 00:03:42,200 --> 00:03:47,720 Speaker 1: Our argument to the Supreme Court was that before even 54 00:03:47,720 --> 00:03:51,240 Speaker 1: coming onto the First Amendment issue, we didn't think that 55 00:03:51,280 --> 00:03:54,720 Speaker 1: the courts had been reading the language of the statute properly. 56 00:03:54,720 --> 00:03:58,400 Speaker 1: In the disparagement referred to individuals, not to not the groups. 57 00:03:58,440 --> 00:04:01,240 Speaker 1: This this would be consistent with the way we usually 58 00:04:01,240 --> 00:04:04,080 Speaker 1: read statutes, to be consistent with the way courts usually 59 00:04:04,360 --> 00:04:08,160 Speaker 1: treat the word person. You can't usually bring a lawsuit 60 00:04:08,240 --> 00:04:11,680 Speaker 1: in the name of an ethnic group or racial group. Um. 61 00:04:11,800 --> 00:04:17,000 Speaker 1: That position was rejected by the Supreme Court. Uh, which 62 00:04:18,200 --> 00:04:20,360 Speaker 1: had his advantages for us because I've enabled to reach 63 00:04:20,360 --> 00:04:22,120 Speaker 1: what we thought was really the more important issue, which 64 00:04:22,160 --> 00:04:25,880 Speaker 1: was the constitutional issue. Joe, you wanted the Federal Circuit 65 00:04:25,920 --> 00:04:28,840 Speaker 1: Court of Appeals, but that court has been overturned several 66 00:04:28,880 --> 00:04:32,440 Speaker 1: times lately by the Supreme Court. How confident were you 67 00:04:32,600 --> 00:04:37,760 Speaker 1: in your argument to the justices you mean the justice 68 00:04:37,960 --> 00:04:42,240 Speaker 1: of the Supreme Court, the justice of the Supreme Court. Yes, yeah, Well, 69 00:04:42,520 --> 00:04:50,200 Speaker 1: I think your observation in the sense of the many 70 00:04:50,279 --> 00:04:52,479 Speaker 1: of the rulings of the Federal Circuit in the area 71 00:04:52,480 --> 00:04:58,360 Speaker 1: of intellectual property law have been overturned by the Supreme Court. Um. 72 00:04:58,520 --> 00:05:01,440 Speaker 1: But this was a case, although when it first arrived 73 00:05:01,480 --> 00:05:04,400 Speaker 1: on the doorsteps of the Federal Circuit was in fact 74 00:05:04,480 --> 00:05:07,719 Speaker 1: a trademark that is, an intellectual property case, it quickly 75 00:05:07,880 --> 00:05:12,640 Speaker 1: morphed into a First Amendment case that was of constitutional moment, 76 00:05:13,240 --> 00:05:16,760 Speaker 1: and and that is the issue that then advanced up 77 00:05:16,760 --> 00:05:20,000 Speaker 1: to the Supreme Court. I've been talking about the Supreme 78 00:05:20,000 --> 00:05:23,440 Speaker 1: Court striking down the curbs on disparaging trademarks in a 79 00:05:23,520 --> 00:05:26,960 Speaker 1: case involving the Asian American rock band call the Slants 80 00:05:27,000 --> 00:05:30,279 Speaker 1: with the attorneys for the band, Ronald Coleman, John Connell, 81 00:05:30,440 --> 00:05:35,680 Speaker 1: and Joel mcmull of Archer Law. John Connell, let's talk 82 00:05:35,720 --> 00:05:42,440 Speaker 1: about Justice Alito's opinion explained the basis of his decision. UH. 83 00:05:42,480 --> 00:05:46,800 Speaker 1: Justice Alito went through each of the arguments that were 84 00:05:47,120 --> 00:05:55,040 Speaker 1: UH asserted by the government and and basically it concluded 85 00:05:55,400 --> 00:05:58,200 Speaker 1: that none of those arguments carried any weight. All of 86 00:05:58,240 --> 00:06:00,960 Speaker 1: them were in fact in violent from the First Amendment. 87 00:06:01,240 --> 00:06:04,000 Speaker 1: Whether that be that there was a government's speech issue 88 00:06:04,000 --> 00:06:06,599 Speaker 1: involved that there was a government subsidy, that there was 89 00:06:06,600 --> 00:06:10,360 Speaker 1: a government program, or that somehow this constituted commercial speech. 90 00:06:11,480 --> 00:06:19,840 Speaker 1: Ronald Coleman. What was the government's position, Ronald, Ronald, Yes, 91 00:06:19,960 --> 00:06:22,240 Speaker 1: we were not entirely clear on the government's position. It 92 00:06:22,320 --> 00:06:23,960 Speaker 1: seemed to move around a little bit. And then the 93 00:06:23,960 --> 00:06:26,719 Speaker 1: reason for that was that it was very difficult for 94 00:06:26,760 --> 00:06:32,120 Speaker 1: them to actually enunciate a particularly coherent position. But to 95 00:06:32,160 --> 00:06:36,520 Speaker 1: a large extent, it came down to the idea that 96 00:06:36,680 --> 00:06:41,400 Speaker 1: the trademark register in some kind of government speech or 97 00:06:41,440 --> 00:06:45,240 Speaker 1: some kind of impromoter from the government that amounts to 98 00:06:45,440 --> 00:06:48,960 Speaker 1: an approval of the message being broadcast or the message 99 00:06:50,600 --> 00:06:53,960 Speaker 1: just being registered. An argument in response to that was 100 00:06:54,120 --> 00:06:57,720 Speaker 1: a comparison to the copyright Register, where it has understood 101 00:06:58,360 --> 00:07:02,000 Speaker 1: that there's all kinds of teriture that has registered, that 102 00:07:02,839 --> 00:07:05,800 Speaker 1: has copyright registration, but that none of that means the 103 00:07:06,040 --> 00:07:11,280 Speaker 1: government approves of the message of the material being registered. 104 00:07:11,320 --> 00:07:14,160 Speaker 1: The same thing with the trademarks. There are lots of trademarks, 105 00:07:14,320 --> 00:07:18,760 Speaker 1: lots of messages, they're in consistent messages. Um, So you know, 106 00:07:18,880 --> 00:07:22,600 Speaker 1: that was essentially the best the government was able to 107 00:07:22,600 --> 00:07:24,200 Speaker 1: come up with, you, which is why some reason we 108 00:07:24,240 --> 00:07:27,560 Speaker 1: felt some confidence. The Obama administration also said it didn't 109 00:07:27,680 --> 00:07:30,840 Speaker 1: the provision didn't prevent people from using a name or 110 00:07:30,880 --> 00:07:34,160 Speaker 1: image and had no effect on the separate trademark protections 111 00:07:34,160 --> 00:07:36,600 Speaker 1: available under state law. In other words, they didn't have 112 00:07:36,640 --> 00:07:39,800 Speaker 1: a trademark, but they could still use the name. Now, 113 00:07:39,880 --> 00:07:43,320 Speaker 1: let's talk a little bit, Joe mcmull let's talk about 114 00:07:43,360 --> 00:07:47,520 Speaker 1: the Washington Redskins. They're challenging a Trademark Office decision that 115 00:07:47,720 --> 00:07:52,000 Speaker 1: canceled some of their trademarks following complaints from Native Americans 116 00:07:52,200 --> 00:07:56,520 Speaker 1: that the name is disparaging. After this opinion, is there 117 00:07:56,560 --> 00:08:00,760 Speaker 1: anything standing in the way of the Washington team getting 118 00:08:00,760 --> 00:08:05,520 Speaker 1: their trademarks. I don't think so. Procedurally, the cases are 119 00:08:05,520 --> 00:08:07,840 Speaker 1: a little bit different. Um. You know what. In the 120 00:08:07,880 --> 00:08:12,239 Speaker 1: case of the Washington Redskins, they had their registrations canceled um, 121 00:08:12,240 --> 00:08:16,000 Speaker 1: But in terms of their being essentially an additional lever 122 00:08:16,160 --> 00:08:18,920 Speaker 1: at this point that can be pulled, I think everyone 123 00:08:18,920 --> 00:08:22,000 Speaker 1: would agree, and certainly this is the I I think 124 00:08:22,000 --> 00:08:25,520 Speaker 1: the pundits are in agreement to that. For all practical purposes, 125 00:08:25,560 --> 00:08:29,119 Speaker 1: the Washington Redskins case has been decided. From a pure 126 00:08:29,240 --> 00:08:34,280 Speaker 1: legal perspective, Dan Schneider may proceed um with that team name. 127 00:08:34,360 --> 00:08:38,560 Speaker 1: Notwithstanding the fact that I suspect um it's it's it's 128 00:08:38,600 --> 00:08:42,280 Speaker 1: going to continue to engender some outrage among perhaps others, 129 00:08:42,320 --> 00:08:46,080 Speaker 1: but certainly including uh the Native American community in this country. 130 00:08:46,080 --> 00:08:49,240 Speaker 1: But from a pure legal perspective, I think the the 131 00:08:49,360 --> 00:08:54,160 Speaker 1: issue has been resolved by virtue of of yesterday's holding. John, 132 00:08:54,880 --> 00:08:57,680 Speaker 1: What is the reaction of the band after all these 133 00:08:57,800 --> 00:09:03,680 Speaker 1: years of fighting? Tell us what you're clients have been saying. Um, 134 00:09:03,800 --> 00:09:09,320 Speaker 1: Simon Tam has been um so relieved to have achieved 135 00:09:09,360 --> 00:09:13,959 Speaker 1: this level of success after many, many years of struggling 136 00:09:14,000 --> 00:09:17,600 Speaker 1: to assert this principle that he so strongly believed in, 137 00:09:18,120 --> 00:09:21,240 Speaker 1: and I think he needs to be commended for having 138 00:09:21,240 --> 00:09:24,679 Speaker 1: done that, especially in the face of the government opposition 139 00:09:24,760 --> 00:09:28,280 Speaker 1: that was brought to bear against him and Ronald Coleman. 140 00:09:28,880 --> 00:09:33,080 Speaker 1: Justice Anthony Kennedy wrote separately in a concurring opinion that 141 00:09:33,160 --> 00:09:36,960 Speaker 1: was joined by Justice Ruth Bader Ginsburg, Sonya Sotomayor, and 142 00:09:37,000 --> 00:09:41,559 Speaker 1: Elena Kagan, tell us about the concurring opinion and how 143 00:09:41,600 --> 00:09:47,080 Speaker 1: it differed from Justice Alito's opinion, well to a large extent. 144 00:09:47,360 --> 00:09:49,520 Speaker 1: Sorry to say that it went further in terms of 145 00:09:49,559 --> 00:09:56,560 Speaker 1: the First Amendment and fundamentally argued that this there there 146 00:09:56,559 --> 00:09:58,960 Speaker 1: are a number of roads that Justice Alito goes down 147 00:09:59,000 --> 00:10:01,120 Speaker 1: that he didn't have to go down those worlds. This 148 00:10:01,200 --> 00:10:04,640 Speaker 1: is a matter of viewpoint discrimination, whether or not it's 149 00:10:04,679 --> 00:10:07,800 Speaker 1: possible for the band to use the name without a registration, 150 00:10:08,160 --> 00:10:13,000 Speaker 1: whether or not there there are any other policy issues. 151 00:10:13,040 --> 00:10:15,360 Speaker 1: At the end of the day, our government program may 152 00:10:15,400 --> 00:10:19,280 Speaker 1: not be restricted based on viewpoint. That was all the 153 00:10:19,280 --> 00:10:21,079 Speaker 1: Court that had. That was all the Court had to decide, 154 00:10:21,080 --> 00:10:27,040 Speaker 1: according to the um concurring opinion. John Connel, So is 155 00:10:27,080 --> 00:10:32,160 Speaker 1: it going to be a less onerous job at the 156 00:10:32,160 --> 00:10:38,240 Speaker 1: the Trademark Office. Now that this case has gone through. Yes, absolutely, UM, 157 00:10:38,400 --> 00:10:43,480 Speaker 1: there will be no impediment based upon disparagement to the 158 00:10:43,520 --> 00:10:47,680 Speaker 1: registration of marks that would have otherwise previous to this time, 159 00:10:48,200 --> 00:10:52,160 Speaker 1: UM been disqualified for registration on that basis. So effectively, 160 00:10:52,400 --> 00:10:54,240 Speaker 1: examiners are not going to have to be put to 161 00:10:54,240 --> 00:10:57,600 Speaker 1: the task of being sociologists or whatever. Uh, They'll simply 162 00:10:57,640 --> 00:10:59,680 Speaker 1: be able to do their job of examining whether the 163 00:10:59,679 --> 00:11:04,640 Speaker 1: market proper source identifier. Joe mcmull in about thirty seconds, 164 00:11:04,679 --> 00:11:08,440 Speaker 1: if you can, what was the highlight of this long 165 00:11:08,520 --> 00:11:13,880 Speaker 1: journey for you besides the decision? Well, yes, right aside 166 00:11:13,880 --> 00:11:15,720 Speaker 1: from the decision itself, I think it was really in 167 00:11:15,720 --> 00:11:18,800 Speaker 1: the preparation. UM. You know, I have been Ron and 168 00:11:18,840 --> 00:11:21,040 Speaker 1: I have been living with this case for some six years, 169 00:11:21,440 --> 00:11:24,920 Speaker 1: and certainly over the last two we have been elbows 170 00:11:24,920 --> 00:11:27,520 Speaker 1: to elbows with our colleague John Connell, and I think 171 00:11:27,559 --> 00:11:30,320 Speaker 1: just the camaraderie that the three of us developed. But 172 00:11:30,400 --> 00:11:33,600 Speaker 1: in addition to that, working with UM, you know, real 173 00:11:33,720 --> 00:11:36,600 Speaker 1: leaders in this country before the Supreme Court bar in 174 00:11:36,640 --> 00:11:39,040 Speaker 1: connection with mood courts and that sort of thing, certainly 175 00:11:39,040 --> 00:11:42,040 Speaker 1: from my perspective, has been the highlight and obviously I 176 00:11:42,040 --> 00:11:44,240 Speaker 1: mean we we joke about it, but obviously you know, 177 00:11:44,360 --> 00:11:48,079 Speaker 1: having having our clients rights vindicated by virtue of yesterday's 178 00:11:48,120 --> 00:11:50,640 Speaker 1: decision is is just really the icing on the cake. Well, 179 00:11:50,640 --> 00:11:53,920 Speaker 1: thank you for being on Bloomberg Law. That's Joel mcmull, 180 00:11:54,000 --> 00:11:57,120 Speaker 1: John Connell and Ronald Coleman of Archer Law