Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. It might have
Speaker 1: sounded like there was some cursing at the Supreme Court today,
Speaker 1: we'll find out. The court was hearing a case over
Speaker 1: the name of a fashion brand the federal government refused
Speaker 1: to trademark, calling it scandalous and immoral. It's a four
Speaker 1: letter word that rhymes with duct. The designer says, the
Speaker 1: government is violating his First Amendment rights. Joining me as
Speaker 1: Greg Store, Bloomberg News Supreme Court reporter who was at
Speaker 1: the arguments, I have to ask you, Greg, did anyone
Speaker 1: have to cover their ears during the oral arguments? Nobody
Speaker 1: had to cover their ears, June. The justices have done
Speaker 1: this sort of thing before. They're pretty good at and
Speaker 1: the lawyers as well at letting everybody know what they're
Speaker 1: talking about without actually saying the word. They didn't even
Speaker 1: phonetically say the name of the trade market issue here,
Speaker 1: which is spelled f uct. They just all assumed they
Speaker 1: knew what they were talking about, all right. Well, recent
Speaker 1: Supreme Court case law suggests that the designer, Eric Brunetti,
Speaker 1: is favored to win. Did the justices questions indicate which
Speaker 1: way they were leaning? It was a lot closer than
Speaker 1: I might have guests going in, you're right. A couple
Speaker 1: of years ago, the Court heard a case very similar
Speaker 1: to this involving disparaging trademarks. That was the case involving
Speaker 1: a rock band known as the Slants. And you might
Speaker 1: have thought going in that that these limits on vulgar
Speaker 1: and lew trademarks would suffer the same fate. But a
Speaker 1: number of justices seem like they wanted to leave some
Speaker 1: room for the government not to have to give its
Speaker 1: effectively endorsement to a handful of words that we all
Speaker 1: know and that most people think are highly offensive. So
Speaker 1: explain the core of the arguments by the designer and
Speaker 1: the government. The core of the argument. There's several levels
Speaker 1: to it. Probably the level on which Mr Brunetti has
Speaker 1: the best chance to win is that this provision is
Speaker 1: so vague it can't be applied consistently. So in the
Speaker 1: briefs there are a lot of examples of similar uses
Speaker 1: of the F word in various forms, for example spelled
Speaker 1: fcu K, where the Patent and Trademark Office has allowed
Speaker 1: federal registration of that trademark. And the argument is, and
Speaker 1: it got some headway, made some headway with some of
Speaker 1: the justices like Neil Gorsage and Ruth Bader Ginsburg, that
Speaker 1: wherever you draw the line for this sort of stuff,
Speaker 1: it's it's going to be somewhat arbitrary, and it's going
Speaker 1: to depend on an individual trademark examiners subjective sense of
Speaker 1: what is too offensive. So, since you mentioned Justice Neil
Speaker 1: Gorsch and Justice Ruth Bader Ginsburg in the same sentence,
Speaker 1: I'll ask you, did it seem then as if the
Speaker 1: justices were not divided down partisan lines, It did not
Speaker 1: feel like that usual ideological divide that we see a lot. No.
Speaker 1: In fact, those are the two Justices Ginsburg and Gorst, who,
Speaker 1: based on their questions, seemed most likely to strike down
Speaker 1: the band. Of course, as as I said, was really
Speaker 1: hitting on that consistency issue. Justice Cavanough asked about that
Speaker 1: as well, and Justice Ginsburg asked a couple of questions
Speaker 1: about whether this term was really as offensive as everybody
Speaker 1: thought it was, and she talked about Mr Brunetti's proposing
Speaker 1: line is what he calls street fashion, and she suggested
Speaker 1: that in the niche market that might be buying his clothing,
Speaker 1: this word was not all that offensive. That's why they
Speaker 1: call her the notorious RBG. So what struck me before
Speaker 1: the arguments as strange was the U. S. Court of
Speaker 1: Appeals for the Federal Circuit ruled in the designer's favor,
Speaker 1: and they sighted the Supreme Court's decision that you talked
Speaker 1: about in the Slants case striking down the disparaging provision.
Speaker 1: So I was wondering why the Court took this case
Speaker 1: up unless they're going to change something. Well, the Court
Speaker 1: as a general matter, does not like to have a
Speaker 1: Federal Appeals have the last words striking down a statute
Speaker 1: or a statutory provision. That is something the Supreme Court
Speaker 1: will almost always agree to do itself. So it was
Speaker 1: entirely possible the court before today, it seemed like the
Speaker 1: Court maybe just took this case because it just wanted
Speaker 1: to affirm what what the lower court had done and said,
Speaker 1: you know, hey, this is just like the disparaging trademarks.
Speaker 1: But as we discussed, as the argument went on, it
Speaker 1: became clear that at least some of the justices weren't
Speaker 1: convinced that it didn't seem like they were convinced that
Speaker 1: the lower court got it right. So what kind of
Speaker 1: standard could they suggest here? That's going to be the
Speaker 1: challenge now. Justice Brier tried to create a line that
Speaker 1: could be drawn. He seems to be somebody who might
Speaker 1: ultimately vote to to uphold this statute. But but what
Speaker 1: he was suggesting was that there are some words that
Speaker 1: he said, six or seven, that have a unique ability
Speaker 1: to create a physiological response in people that you lodge
Speaker 1: in a different part of their brain, that people remember
Speaker 1: the words and the reaction when they heard or saw
Speaker 1: the word. And yes, he suggested that it was suggested
Speaker 1: that maybe there's some sort of line that could be
Speaker 1: drawn around the handful of words. And Chief Justice John
Speaker 1: Roberts suggested he was on that side too, and and
Speaker 1: he was being driven in part by this notion that
Speaker 1: if the Court were to strike down the statute, it's
Speaker 1: not clear that the Trademark Office would be able to
Speaker 1: prohibit any federal registration of trademarks, even for things that
Speaker 1: are obscene, which is the kind of which is something
Speaker 1: that is so extreme that the Supreme Courts has said
Speaker 1: in other context doesn't deserve any speech protections at all.
Speaker 1: So there were some concerns that the federal government would
Speaker 1: be unable to police any sort of offensive trademarks. Today
Speaker 1: agree on what those six or seven words were. They
Speaker 1: didn't say, they're out loud. But here's one thing that
Speaker 1: was really interesting to meet June is that, you know,
Speaker 1: the earlier case was about disparaging trademarks, and as I said,
Speaker 1: that was a rock band known as the Slants now
Speaker 1: they're an Asian American band, and they said that the
Speaker 1: name of their band was being used ironically. I think
Speaker 1: it all fought that that included things like racial slurs,
Speaker 1: that that was the kind of thing that the court
Speaker 1: considered to be viewpoint discrimination and you couldn't discriminate on
Speaker 1: the basis of viewpoint. But the government lawyer, Malcolm Stewart,
Speaker 1: said that there was one word in particular. Didn't say
Speaker 1: what it was, but we can imagine what it is,
Speaker 1: an especially bad racial slur that the government that the
Speaker 1: Trademark Office is basically waiting on that they really don't
Speaker 1: want to approve applications that use that one particular word,
Speaker 1: and he is suggesting that that one word might be
Speaker 1: more like uh vulgar expressions rather than something that is
Speaker 1: purely disparaging trademark and therefore viewpoint discrimination. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg
Speaker 1: dot com slash podcast. I'm June Brasso. This is Bloomberg