WEBVTT - Justices Divided Over Vulgar Trademark Protection

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. It might have

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<v Speaker 1>sounded like there was some cursing at the Supreme Court today,

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<v Speaker 1>we'll find out. The court was hearing a case over

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<v Speaker 1>the name of a fashion brand the federal government refused

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<v Speaker 1>to trademark, calling it scandalous and immoral. It's a four

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<v Speaker 1>letter word that rhymes with duct. The designer says, the

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<v Speaker 1>government is violating his First Amendment rights. Joining me as

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<v Speaker 1>Greg Store, Bloomberg News Supreme Court reporter who was at

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<v Speaker 1>the arguments, I have to ask you, Greg, did anyone

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<v Speaker 1>have to cover their ears during the oral arguments? Nobody

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<v Speaker 1>had to cover their ears, June. The justices have done

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<v Speaker 1>this sort of thing before. They're pretty good at and

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<v Speaker 1>the lawyers as well at letting everybody know what they're

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<v Speaker 1>talking about without actually saying the word. They didn't even

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<v Speaker 1>phonetically say the name of the trade market issue here,

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<v Speaker 1>which is spelled f uct. They just all assumed they

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<v Speaker 1>knew what they were talking about, all right. Well, recent

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<v Speaker 1>Supreme Court case law suggests that the designer, Eric Brunetti,

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<v Speaker 1>is favored to win. Did the justices questions indicate which

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<v Speaker 1>way they were leaning? It was a lot closer than

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<v Speaker 1>I might have guests going in, you're right. A couple

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<v Speaker 1>of years ago, the Court heard a case very similar

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<v Speaker 1>to this involving disparaging trademarks. That was the case involving

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<v Speaker 1>a rock band known as the Slants. And you might

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<v Speaker 1>have thought going in that that these limits on vulgar

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<v Speaker 1>and lew trademarks would suffer the same fate. But a

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<v Speaker 1>number of justices seem like they wanted to leave some

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<v Speaker 1>room for the government not to have to give its

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<v Speaker 1>effectively endorsement to a handful of words that we all

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<v Speaker 1>know and that most people think are highly offensive. So

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<v Speaker 1>explain the core of the arguments by the designer and

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<v Speaker 1>the government. The core of the argument. There's several levels

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<v Speaker 1>to it. Probably the level on which Mr Brunetti has

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<v Speaker 1>the best chance to win is that this provision is

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<v Speaker 1>so vague it can't be applied consistently. So in the

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<v Speaker 1>briefs there are a lot of examples of similar uses

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<v Speaker 1>of the F word in various forms, for example spelled

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<v Speaker 1>fcu K, where the Patent and Trademark Office has allowed

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<v Speaker 1>federal registration of that trademark. And the argument is, and

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<v Speaker 1>it got some headway, made some headway with some of

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<v Speaker 1>the justices like Neil Gorsage and Ruth Bader Ginsburg, that

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<v Speaker 1>wherever you draw the line for this sort of stuff,

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<v Speaker 1>it's it's going to be somewhat arbitrary, and it's going

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<v Speaker 1>to depend on an individual trademark examiners subjective sense of

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<v Speaker 1>what is too offensive. So, since you mentioned Justice Neil

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<v Speaker 1>Gorsch and Justice Ruth Bader Ginsburg in the same sentence,

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<v Speaker 1>I'll ask you, did it seem then as if the

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<v Speaker 1>justices were not divided down partisan lines, It did not

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<v Speaker 1>feel like that usual ideological divide that we see a lot. No.

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<v Speaker 1>In fact, those are the two Justices Ginsburg and Gorst, who,

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<v Speaker 1>based on their questions, seemed most likely to strike down

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<v Speaker 1>the band. Of course, as as I said, was really

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<v Speaker 1>hitting on that consistency issue. Justice Cavanough asked about that

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<v Speaker 1>as well, and Justice Ginsburg asked a couple of questions

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<v Speaker 1>about whether this term was really as offensive as everybody

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<v Speaker 1>thought it was, and she talked about Mr Brunetti's proposing

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<v Speaker 1>line is what he calls street fashion, and she suggested

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<v Speaker 1>that in the niche market that might be buying his clothing,

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<v Speaker 1>this word was not all that offensive. That's why they

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<v Speaker 1>call her the notorious RBG. So what struck me before

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<v Speaker 1>the arguments as strange was the U. S. Court of

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<v Speaker 1>Appeals for the Federal Circuit ruled in the designer's favor,

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<v Speaker 1>and they sighted the Supreme Court's decision that you talked

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<v Speaker 1>about in the Slants case striking down the disparaging provision.

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<v Speaker 1>So I was wondering why the Court took this case

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<v Speaker 1>up unless they're going to change something. Well, the Court

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<v Speaker 1>as a general matter, does not like to have a

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<v Speaker 1>Federal Appeals have the last words striking down a statute

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<v Speaker 1>or a statutory provision. That is something the Supreme Court

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<v Speaker 1>will almost always agree to do itself. So it was

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<v Speaker 1>entirely possible the court before today, it seemed like the

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<v Speaker 1>Court maybe just took this case because it just wanted

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<v Speaker 1>to affirm what what the lower court had done and said,

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<v Speaker 1>you know, hey, this is just like the disparaging trademarks.

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<v Speaker 1>But as we discussed, as the argument went on, it

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<v Speaker 1>became clear that at least some of the justices weren't

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<v Speaker 1>convinced that it didn't seem like they were convinced that

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<v Speaker 1>the lower court got it right. So what kind of

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<v Speaker 1>standard could they suggest here? That's going to be the

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<v Speaker 1>challenge now. Justice Brier tried to create a line that

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<v Speaker 1>could be drawn. He seems to be somebody who might

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<v Speaker 1>ultimately vote to to uphold this statute. But but what

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<v Speaker 1>he was suggesting was that there are some words that

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<v Speaker 1>he said, six or seven, that have a unique ability

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<v Speaker 1>to create a physiological response in people that you lodge

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<v Speaker 1>in a different part of their brain, that people remember

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<v Speaker 1>the words and the reaction when they heard or saw

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<v Speaker 1>the word. And yes, he suggested that it was suggested

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<v Speaker 1>that maybe there's some sort of line that could be

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<v Speaker 1>drawn around the handful of words. And Chief Justice John

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<v Speaker 1>Roberts suggested he was on that side too, and and

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<v Speaker 1>he was being driven in part by this notion that

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<v Speaker 1>if the Court were to strike down the statute, it's

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<v Speaker 1>not clear that the Trademark Office would be able to

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<v Speaker 1>prohibit any federal registration of trademarks, even for things that

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<v Speaker 1>are obscene, which is the kind of which is something

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<v Speaker 1>that is so extreme that the Supreme Courts has said

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<v Speaker 1>in other context doesn't deserve any speech protections at all.

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<v Speaker 1>So there were some concerns that the federal government would

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<v Speaker 1>be unable to police any sort of offensive trademarks. Today

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<v Speaker 1>agree on what those six or seven words were. They

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<v Speaker 1>didn't say, they're out loud. But here's one thing that

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<v Speaker 1>was really interesting to meet June is that, you know,

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<v Speaker 1>the earlier case was about disparaging trademarks, and as I said,

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<v Speaker 1>that was a rock band known as the Slants now

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<v Speaker 1>they're an Asian American band, and they said that the

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<v Speaker 1>name of their band was being used ironically. I think

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<v Speaker 1>it all fought that that included things like racial slurs,

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<v Speaker 1>that that was the kind of thing that the court

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<v Speaker 1>considered to be viewpoint discrimination and you couldn't discriminate on

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<v Speaker 1>the basis of viewpoint. But the government lawyer, Malcolm Stewart,

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<v Speaker 1>said that there was one word in particular. Didn't say

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<v Speaker 1>what it was, but we can imagine what it is,

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<v Speaker 1>an especially bad racial slur that the government that the

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<v Speaker 1>Trademark Office is basically waiting on that they really don't

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<v Speaker 1>want to approve applications that use that one particular word,

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<v Speaker 1>and he is suggesting that that one word might be

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<v Speaker 1>more like uh vulgar expressions rather than something that is

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<v Speaker 1>purely disparaging trademark and therefore viewpoint discrimination. Thanks for listening

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<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

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<v Speaker 1>to the show on Apple Podcasts, SoundCloud, and on bloomberg

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<v Speaker 1>dot com slash podcast. I'm June Brasso. This is Bloomberg