1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you insight and analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

5
00:00:16,280 --> 00:00:19,680
Speaker 1: and on Bloomberg dot com slash podcast. It might have

6
00:00:19,760 --> 00:00:22,639
Speaker 1: sounded like there was some cursing at the Supreme Court today,

7
00:00:22,960 --> 00:00:25,239
Speaker 1: we'll find out. The court was hearing a case over

8
00:00:25,280 --> 00:00:28,000
Speaker 1: the name of a fashion brand the federal government refused

9
00:00:28,000 --> 00:00:31,360
Speaker 1: to trademark, calling it scandalous and immoral. It's a four

10
00:00:31,440 --> 00:00:34,800
Speaker 1: letter word that rhymes with duct. The designer says, the

11
00:00:34,840 --> 00:00:38,120
Speaker 1: government is violating his First Amendment rights. Joining me as

12
00:00:38,159 --> 00:00:40,840
Speaker 1: Greg Store, Bloomberg News Supreme Court reporter who was at

13
00:00:40,880 --> 00:00:43,680
Speaker 1: the arguments, I have to ask you, Greg, did anyone

14
00:00:43,760 --> 00:00:47,159
Speaker 1: have to cover their ears during the oral arguments? Nobody

15
00:00:47,159 --> 00:00:49,720
Speaker 1: had to cover their ears, June. The justices have done

16
00:00:49,760 --> 00:00:52,000
Speaker 1: this sort of thing before. They're pretty good at and

17
00:00:52,040 --> 00:00:54,520
Speaker 1: the lawyers as well at letting everybody know what they're

18
00:00:54,520 --> 00:00:57,360
Speaker 1: talking about without actually saying the word. They didn't even

19
00:00:57,440 --> 00:01:00,960
Speaker 1: phonetically say the name of the trade market issue here,

20
00:01:01,000 --> 00:01:04,160
Speaker 1: which is spelled f uct. They just all assumed they

21
00:01:04,200 --> 00:01:06,920
Speaker 1: knew what they were talking about, all right. Well, recent

22
00:01:06,959 --> 00:01:12,120
Speaker 1: Supreme Court case law suggests that the designer, Eric Brunetti,

23
00:01:12,160 --> 00:01:16,119
Speaker 1: is favored to win. Did the justices questions indicate which

24
00:01:16,120 --> 00:01:18,480
Speaker 1: way they were leaning? It was a lot closer than

25
00:01:18,520 --> 00:01:20,440
Speaker 1: I might have guests going in, you're right. A couple

26
00:01:20,480 --> 00:01:23,080
Speaker 1: of years ago, the Court heard a case very similar

27
00:01:23,120 --> 00:01:26,440
Speaker 1: to this involving disparaging trademarks. That was the case involving

28
00:01:26,640 --> 00:01:29,240
Speaker 1: a rock band known as the Slants. And you might

29
00:01:29,280 --> 00:01:32,480
Speaker 1: have thought going in that that these limits on vulgar

30
00:01:32,560 --> 00:01:35,960
Speaker 1: and lew trademarks would suffer the same fate. But a

31
00:01:36,040 --> 00:01:39,399
Speaker 1: number of justices seem like they wanted to leave some

32
00:01:39,560 --> 00:01:42,560
Speaker 1: room for the government not to have to give its

33
00:01:42,600 --> 00:01:46,800
Speaker 1: effectively endorsement to a handful of words that we all

34
00:01:46,840 --> 00:01:50,080
Speaker 1: know and that most people think are highly offensive. So

35
00:01:50,280 --> 00:01:53,360
Speaker 1: explain the core of the arguments by the designer and

36
00:01:53,400 --> 00:01:56,240
Speaker 1: the government. The core of the argument. There's several levels

37
00:01:56,280 --> 00:01:59,040
Speaker 1: to it. Probably the level on which Mr Brunetti has

38
00:01:59,080 --> 00:02:02,240
Speaker 1: the best chance to win is that this provision is

39
00:02:02,360 --> 00:02:06,360
Speaker 1: so vague it can't be applied consistently. So in the

40
00:02:06,400 --> 00:02:09,800
Speaker 1: briefs there are a lot of examples of similar uses

41
00:02:09,960 --> 00:02:14,480
Speaker 1: of the F word in various forms, for example spelled

42
00:02:15,040 --> 00:02:19,840
Speaker 1: fcu K, where the Patent and Trademark Office has allowed

43
00:02:19,919 --> 00:02:25,000
Speaker 1: federal registration of that trademark. And the argument is, and

44
00:02:25,120 --> 00:02:27,959
Speaker 1: it got some headway, made some headway with some of

45
00:02:28,000 --> 00:02:31,560
Speaker 1: the justices like Neil Gorsage and Ruth Bader Ginsburg, that

46
00:02:31,960 --> 00:02:34,360
Speaker 1: wherever you draw the line for this sort of stuff,

47
00:02:34,480 --> 00:02:36,640
Speaker 1: it's it's going to be somewhat arbitrary, and it's going

48
00:02:36,720 --> 00:02:41,799
Speaker 1: to depend on an individual trademark examiners subjective sense of

49
00:02:41,840 --> 00:02:45,680
Speaker 1: what is too offensive. So, since you mentioned Justice Neil

50
00:02:45,720 --> 00:02:49,720
Speaker 1: Gorsch and Justice Ruth Bader Ginsburg in the same sentence,

51
00:02:49,800 --> 00:02:52,040
Speaker 1: I'll ask you, did it seem then as if the

52
00:02:52,120 --> 00:02:55,720
Speaker 1: justices were not divided down partisan lines, It did not

53
00:02:55,800 --> 00:02:59,200
Speaker 1: feel like that usual ideological divide that we see a lot. No.

54
00:02:59,560 --> 00:03:02,320
Speaker 1: In fact, those are the two Justices Ginsburg and Gorst, who,

55
00:03:02,360 --> 00:03:04,880
Speaker 1: based on their questions, seemed most likely to strike down

56
00:03:05,320 --> 00:03:07,919
Speaker 1: the band. Of course, as as I said, was really

57
00:03:07,960 --> 00:03:11,360
Speaker 1: hitting on that consistency issue. Justice Cavanough asked about that

58
00:03:11,400 --> 00:03:14,680
Speaker 1: as well, and Justice Ginsburg asked a couple of questions

59
00:03:15,040 --> 00:03:18,079
Speaker 1: about whether this term was really as offensive as everybody

60
00:03:18,160 --> 00:03:22,000
Speaker 1: thought it was, and she talked about Mr Brunetti's proposing

61
00:03:22,080 --> 00:03:25,079
Speaker 1: line is what he calls street fashion, and she suggested

62
00:03:25,120 --> 00:03:27,880
Speaker 1: that in the niche market that might be buying his clothing,

63
00:03:28,200 --> 00:03:30,880
Speaker 1: this word was not all that offensive. That's why they

64
00:03:30,880 --> 00:03:35,680
Speaker 1: call her the notorious RBG. So what struck me before

65
00:03:35,960 --> 00:03:38,880
Speaker 1: the arguments as strange was the U. S. Court of

66
00:03:38,880 --> 00:03:42,480
Speaker 1: Appeals for the Federal Circuit ruled in the designer's favor,

67
00:03:42,560 --> 00:03:44,920
Speaker 1: and they sighted the Supreme Court's decision that you talked

68
00:03:44,920 --> 00:03:48,840
Speaker 1: about in the Slants case striking down the disparaging provision.

69
00:03:49,480 --> 00:03:51,880
Speaker 1: So I was wondering why the Court took this case

70
00:03:51,920 --> 00:03:55,400
Speaker 1: up unless they're going to change something. Well, the Court

71
00:03:55,480 --> 00:03:59,120
Speaker 1: as a general matter, does not like to have a

72
00:03:59,200 --> 00:04:02,440
Speaker 1: Federal Appeals have the last words striking down a statute

73
00:04:02,480 --> 00:04:05,160
Speaker 1: or a statutory provision. That is something the Supreme Court

74
00:04:05,200 --> 00:04:08,400
Speaker 1: will almost always agree to do itself. So it was

75
00:04:08,560 --> 00:04:11,400
Speaker 1: entirely possible the court before today, it seemed like the

76
00:04:11,400 --> 00:04:13,320
Speaker 1: Court maybe just took this case because it just wanted

77
00:04:13,320 --> 00:04:15,520
Speaker 1: to affirm what what the lower court had done and said,

78
00:04:15,800 --> 00:04:18,640
Speaker 1: you know, hey, this is just like the disparaging trademarks.

79
00:04:18,640 --> 00:04:21,120
Speaker 1: But as we discussed, as the argument went on, it

80
00:04:21,240 --> 00:04:23,840
Speaker 1: became clear that at least some of the justices weren't

81
00:04:23,839 --> 00:04:25,960
Speaker 1: convinced that it didn't seem like they were convinced that

82
00:04:26,000 --> 00:04:28,520
Speaker 1: the lower court got it right. So what kind of

83
00:04:28,600 --> 00:04:32,479
Speaker 1: standard could they suggest here? That's going to be the

84
00:04:32,560 --> 00:04:37,520
Speaker 1: challenge now. Justice Brier tried to create a line that

85
00:04:37,520 --> 00:04:39,680
Speaker 1: could be drawn. He seems to be somebody who might

86
00:04:40,040 --> 00:04:43,880
Speaker 1: ultimately vote to to uphold this statute. But but what

87
00:04:43,960 --> 00:04:47,160
Speaker 1: he was suggesting was that there are some words that

88
00:04:47,200 --> 00:04:50,680
Speaker 1: he said, six or seven, that have a unique ability

89
00:04:50,760 --> 00:04:54,760
Speaker 1: to create a physiological response in people that you lodge

90
00:04:54,760 --> 00:04:56,840
Speaker 1: in a different part of their brain, that people remember

91
00:04:56,880 --> 00:04:59,320
Speaker 1: the words and the reaction when they heard or saw

92
00:04:59,360 --> 00:05:02,680
Speaker 1: the word. And yes, he suggested that it was suggested

93
00:05:02,720 --> 00:05:04,440
Speaker 1: that maybe there's some sort of line that could be

94
00:05:04,520 --> 00:05:08,400
Speaker 1: drawn around the handful of words. And Chief Justice John

95
00:05:08,480 --> 00:05:11,240
Speaker 1: Roberts suggested he was on that side too, and and

96
00:05:11,440 --> 00:05:14,080
Speaker 1: he was being driven in part by this notion that

97
00:05:14,440 --> 00:05:16,520
Speaker 1: if the Court were to strike down the statute, it's

98
00:05:16,560 --> 00:05:20,040
Speaker 1: not clear that the Trademark Office would be able to

99
00:05:20,240 --> 00:05:24,560
Speaker 1: prohibit any federal registration of trademarks, even for things that

100
00:05:24,880 --> 00:05:27,839
Speaker 1: are obscene, which is the kind of which is something

101
00:05:27,880 --> 00:05:30,440
Speaker 1: that is so extreme that the Supreme Courts has said

102
00:05:30,440 --> 00:05:34,000
Speaker 1: in other context doesn't deserve any speech protections at all.

103
00:05:34,200 --> 00:05:38,000
Speaker 1: So there were some concerns that the federal government would

104
00:05:38,200 --> 00:05:42,359
Speaker 1: be unable to police any sort of offensive trademarks. Today

105
00:05:42,480 --> 00:05:45,720
Speaker 1: agree on what those six or seven words were. They

106
00:05:45,760 --> 00:05:47,320
Speaker 1: didn't say, they're out loud. But here's one thing that

107
00:05:47,360 --> 00:05:49,800
Speaker 1: was really interesting to meet June is that, you know,

108
00:05:49,960 --> 00:05:52,800
Speaker 1: the earlier case was about disparaging trademarks, and as I said,

109
00:05:52,839 --> 00:05:54,760
Speaker 1: that was a rock band known as the Slants now

110
00:05:54,760 --> 00:05:56,680
Speaker 1: they're an Asian American band, and they said that the

111
00:05:56,760 --> 00:06:00,400
Speaker 1: name of their band was being used ironically. I think

112
00:06:00,400 --> 00:06:04,120
Speaker 1: it all fought that that included things like racial slurs,

113
00:06:04,120 --> 00:06:05,599
Speaker 1: that that was the kind of thing that the court

114
00:06:05,600 --> 00:06:09,480
Speaker 1: considered to be viewpoint discrimination and you couldn't discriminate on

115
00:06:09,520 --> 00:06:13,239
Speaker 1: the basis of viewpoint. But the government lawyer, Malcolm Stewart,

116
00:06:13,560 --> 00:06:16,680
Speaker 1: said that there was one word in particular. Didn't say

117
00:06:16,680 --> 00:06:18,600
Speaker 1: what it was, but we can imagine what it is,

118
00:06:18,760 --> 00:06:22,880
Speaker 1: an especially bad racial slur that the government that the

119
00:06:22,920 --> 00:06:26,760
Speaker 1: Trademark Office is basically waiting on that they really don't

120
00:06:26,760 --> 00:06:31,159
Speaker 1: want to approve applications that use that one particular word,

121
00:06:31,440 --> 00:06:33,920
Speaker 1: and he is suggesting that that one word might be

122
00:06:33,960 --> 00:06:38,240
Speaker 1: more like uh vulgar expressions rather than something that is

123
00:06:38,279 --> 00:06:44,919
Speaker 1: purely disparaging trademark and therefore viewpoint discrimination. Thanks for listening

124
00:06:44,960 --> 00:06:48,239
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

125
00:06:48,279 --> 00:06:51,839
Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg

126
00:06:51,920 --> 00:06:56,640
Speaker 1: dot com slash podcast. I'm June Brasso. This is Bloomberg