1 00:00:00,160 --> 00:00:03,120 Speaker 1: In two thousand and six, a rock band comprised entirely 2 00:00:03,120 --> 00:00:06,600 Speaker 1: of Asian America's named itself the Slants, with the idea 3 00:00:06,640 --> 00:00:08,800 Speaker 1: that it would reappropriate a term that has been used 4 00:00:08,840 --> 00:00:12,240 Speaker 1: to denigrade Asian Americans. Five years later, the leader of 5 00:00:12,240 --> 00:00:14,080 Speaker 1: the band so had to register their name as a 6 00:00:14,080 --> 00:00:17,040 Speaker 1: trademark with the federal government, but the U. S. Patent 7 00:00:17,040 --> 00:00:20,599 Speaker 1: and Trademark Office said no, because federal law prohibits registration 8 00:00:20,680 --> 00:00:23,840 Speaker 1: of a trademark that disparages people. The leader that leader 9 00:00:23,880 --> 00:00:26,040 Speaker 1: of the band, Simon Tam, then sued the government on 10 00:00:26,079 --> 00:00:28,760 Speaker 1: the ground that the denial violated his First Amendment right 11 00:00:28,800 --> 00:00:32,040 Speaker 1: to free speech. And today the Supreme Court heard arguments 12 00:00:32,120 --> 00:00:34,599 Speaker 1: in TAM's case. Here to talk with it, about it, 13 00:00:34,720 --> 00:00:36,840 Speaker 1: with us about it is our Bloomberg Law co host 14 00:00:36,840 --> 00:00:41,240 Speaker 1: Greg Store, who's also Bloomberg Supreme Court reporter. Greg was 15 00:00:41,280 --> 00:00:43,440 Speaker 1: in the courtroom today and we're gonna be talking to 16 00:00:43,520 --> 00:00:46,559 Speaker 1: him about the argument. But first, Greg, why don't we 17 00:00:46,560 --> 00:00:50,479 Speaker 1: talk about a decision the Supreme Court issued uh today 18 00:00:50,720 --> 00:00:52,839 Speaker 1: and then we'll get to the trademarketing that they had 19 00:00:52,880 --> 00:00:55,400 Speaker 1: a decision about Fannie made, didn't they? They did? And 20 00:00:56,160 --> 00:00:58,120 Speaker 1: I'd love to tell you it's the most closely watched 21 00:00:58,200 --> 00:01:01,360 Speaker 1: case of the term, Michael, but that's not not the case, 22 00:01:01,400 --> 00:01:04,680 Speaker 1: but it's still important for Fanning May. Essentially the question 23 00:01:04,800 --> 00:01:07,560 Speaker 1: is whether Fanning May was was sued and tried to 24 00:01:07,720 --> 00:01:13,720 Speaker 1: move um a lawsuit into federal courts and often, uh, 25 00:01:13,760 --> 00:01:15,959 Speaker 1: you know, big corporate defendants like to be in in 26 00:01:16,080 --> 00:01:18,440 Speaker 1: federal court. They think they stand a better chance of winning. 27 00:01:18,760 --> 00:01:21,679 Speaker 1: And the Supreme Court unanimously said that there's a provision 28 00:01:21,680 --> 00:01:24,600 Speaker 1: in federal law that that that Fanning May thought gave 29 00:01:24,720 --> 00:01:28,440 Speaker 1: federal courts jurisdiction over any case involving Fanning May. And 30 00:01:28,480 --> 00:01:32,119 Speaker 1: the Supreme Court unanimously said, no, that's not the case. 31 00:01:32,160 --> 00:01:35,880 Speaker 1: An opinion by justice so do mayor so a setback 32 00:01:35,920 --> 00:01:40,440 Speaker 1: for Fanning May, But really just about where Fanning May 33 00:01:40,440 --> 00:01:44,280 Speaker 1: have to have to uh can be in court, not 34 00:01:44,280 --> 00:01:47,119 Speaker 1: not whether they can be sued. So, Greg, now let's 35 00:01:47,160 --> 00:01:50,000 Speaker 1: go to one of the more closely watched cases and 36 00:01:50,040 --> 00:01:53,240 Speaker 1: one of the more interesting ones from my point of view, 37 00:01:53,400 --> 00:01:56,680 Speaker 1: and that is the case about disparaging trademarks. There were 38 00:01:56,800 --> 00:01:59,880 Speaker 1: oral arguments today. You were there, what was the main 39 00:02:00,120 --> 00:02:03,560 Speaker 1: you for the justices? Yeah, it is a really interesting case. 40 00:02:03,600 --> 00:02:07,559 Speaker 1: Student federal trademark law does and has for for seventy 41 00:02:07,640 --> 00:02:11,880 Speaker 1: years or so, say that trademark examiners can refuse to 42 00:02:12,880 --> 00:02:16,120 Speaker 1: uh register a trademark and we can talk later about 43 00:02:16,200 --> 00:02:18,560 Speaker 1: what what that involves, but that's it's a benefit for 44 00:02:18,560 --> 00:02:22,680 Speaker 1: a trademark owner, uh if the name is disparaging of 45 00:02:22,680 --> 00:02:25,360 Speaker 1: of somebody else or some other thing. And in the 46 00:02:25,360 --> 00:02:29,480 Speaker 1: case of this group, the Slants trademark examiners concluded it 47 00:02:29,560 --> 00:02:33,680 Speaker 1: was disparaging, even though as as Michael describe, that's not 48 00:02:33,760 --> 00:02:36,080 Speaker 1: what the members of the band say they're they're trying 49 00:02:36,120 --> 00:02:39,200 Speaker 1: to do. And so the question is whether that sort 50 00:02:39,240 --> 00:02:44,320 Speaker 1: of distinction is constitutionally appropriate for the government to do 51 00:02:44,560 --> 00:02:47,639 Speaker 1: in the general sense. In the courtroom are the big 52 00:02:47,720 --> 00:02:52,160 Speaker 1: question was whether that was impermissible viewpoint discrimination by the 53 00:02:52,200 --> 00:02:54,639 Speaker 1: federal government. Well, on first blush, you know, it does 54 00:02:54,720 --> 00:02:58,639 Speaker 1: seem like g they're just expressing something here, they're trying 55 00:02:58,680 --> 00:03:01,560 Speaker 1: to reclaim something. It's very political. You think it's the 56 00:03:01,600 --> 00:03:03,760 Speaker 1: heart of the free speech clause of the First Amendment. 57 00:03:04,240 --> 00:03:06,440 Speaker 1: On the other hand, what did the government argue, Well, 58 00:03:06,440 --> 00:03:08,800 Speaker 1: the government's argument is that they can still say it. 59 00:03:08,919 --> 00:03:11,839 Speaker 1: Nobody is questioning their ability to call themselves this land, 60 00:03:11,880 --> 00:03:16,240 Speaker 1: and in fact they can sue UH for trademark infringement 61 00:03:16,800 --> 00:03:20,600 Speaker 1: for example under state common law. The question that the 62 00:03:20,639 --> 00:03:22,520 Speaker 1: government says is whether we're going to give them this 63 00:03:22,560 --> 00:03:25,120 Speaker 1: added benefit. This is a registry and basically you can 64 00:03:25,280 --> 00:03:27,960 Speaker 1: if you're thinking about, you know, naming your own rock band, 65 00:03:28,000 --> 00:03:30,840 Speaker 1: you can go to this registry and see see you know, 66 00:03:30,880 --> 00:03:33,280 Speaker 1: what names are already taken and make sure you're not 67 00:03:33,440 --> 00:03:37,520 Speaker 1: infringing on anything. Um And it also, um you know, 68 00:03:37,800 --> 00:03:41,000 Speaker 1: give some legal benefits, some presumptions when you're in court 69 00:03:41,520 --> 00:03:44,600 Speaker 1: if you're the owner of a registered trademark. And so 70 00:03:44,640 --> 00:03:47,080 Speaker 1: the government says the fact that we're prohibiting anybody from 71 00:03:47,120 --> 00:03:49,400 Speaker 1: saying anything, We're just deciding where that we're going to 72 00:03:49,480 --> 00:03:51,800 Speaker 1: confer a benefit, and when we do that, we have 73 00:03:51,880 --> 00:03:55,120 Speaker 1: a lot more discretion. Loo Greg. It seems as if 74 00:03:55,160 --> 00:03:58,680 Speaker 1: there is too too much discretion. I mean, there are 75 00:03:58,840 --> 00:04:03,360 Speaker 1: bands who have been recognized trademarks for example and w 76 00:04:03,360 --> 00:04:06,880 Speaker 1: A Uncle Cracker. Those are those are bands that do 77 00:04:07,040 --> 00:04:12,840 Speaker 1: have trademarks. And so isn't it viewpoint discrimination? Yeah? That 78 00:04:13,200 --> 00:04:15,960 Speaker 1: that that is certainly one of the arguments and another 79 00:04:16,000 --> 00:04:17,720 Speaker 1: way of thinking about it. I'll though this didn't come 80 00:04:17,760 --> 00:04:19,359 Speaker 1: up as much as I might have thought it would have. 81 00:04:19,440 --> 00:04:22,039 Speaker 1: Is that this provision in the law just talks about 82 00:04:22,080 --> 00:04:27,360 Speaker 1: disparaging um, and it doesn't really define what what exactly 83 00:04:27,480 --> 00:04:30,799 Speaker 1: that is. And so you do have these results that 84 00:04:31,240 --> 00:04:36,160 Speaker 1: seem like they are they are inconsistent with one another. Uh. 85 00:04:36,520 --> 00:04:38,240 Speaker 1: And that was the general sets in the courtroom that 86 00:04:38,279 --> 00:04:42,400 Speaker 1: there was um that there was real concern that the 87 00:04:42,440 --> 00:04:47,240 Speaker 1: government uh did have the ability to say this name 88 00:04:47,320 --> 00:04:50,120 Speaker 1: is okay, this name is not okay. But the justice 89 00:04:50,160 --> 00:04:53,640 Speaker 1: did have some concerns about how to draw lines here, 90 00:04:53,680 --> 00:04:56,880 Speaker 1: didn't they They did, it wasn't and they didn't get 91 00:04:56,880 --> 00:05:00,799 Speaker 1: a whole lot of help from Mr TAM's lawyer on that. Um. 92 00:05:00,839 --> 00:05:03,599 Speaker 1: You know, one question that came up in't ever really 93 00:05:04,560 --> 00:05:07,560 Speaker 1: got answered was or well, how does it you know, 94 00:05:07,760 --> 00:05:10,760 Speaker 1: could the government, you say, a local government have a 95 00:05:10,800 --> 00:05:13,360 Speaker 1: Shakespeare festival where what we're gonna do is we're gonna, 96 00:05:13,440 --> 00:05:18,200 Speaker 1: you know, talk about how great Shakespeare was and um, 97 00:05:18,760 --> 00:05:21,880 Speaker 1: uh you know, isn't that a form of viewpoint discrimination? 98 00:05:21,920 --> 00:05:24,760 Speaker 1: But in a very limited context. And and so what 99 00:05:24,800 --> 00:05:26,719 Speaker 1: they seemed to be really searching for was to try 100 00:05:26,760 --> 00:05:30,400 Speaker 1: to figure out how we could say that trademark is 101 00:05:30,520 --> 00:05:34,480 Speaker 1: different from all these other contexts where um, the government 102 00:05:34,680 --> 00:05:39,240 Speaker 1: might uh legitimately be able to say, in this particular context, 103 00:05:39,360 --> 00:05:43,360 Speaker 1: we're we're only um talking about certain things. Right. How 104 00:05:43,360 --> 00:05:48,800 Speaker 1: did the Federal Circuit, which handles these cases, handle this below, Well, 105 00:05:48,839 --> 00:05:54,000 Speaker 1: the Federal Circuit decided with with the band the band um. 106 00:05:54,120 --> 00:05:57,760 Speaker 1: Mr Tam and said that this was a violation of 107 00:05:57,800 --> 00:06:00,960 Speaker 1: the First Amendment, which which essentially made of a guarantee 108 00:06:01,000 --> 00:06:04,880 Speaker 1: that the Supreme Court would would take up the issue. Um, 109 00:06:04,920 --> 00:06:06,960 Speaker 1: there is another case I should point out that that 110 00:06:07,040 --> 00:06:10,400 Speaker 1: involves the Washington Redskins that may or make them out 111 00:06:10,440 --> 00:06:13,440 Speaker 1: the same way or may not come out the same way. Well, 112 00:06:13,920 --> 00:06:17,960 Speaker 1: you know, TAM's lawyer argued, if I understood his argument correctly, 113 00:06:18,080 --> 00:06:20,160 Speaker 1: that there is a way to for the court to 114 00:06:20,240 --> 00:06:23,760 Speaker 1: decide this without getting to the constitutional question. That is, 115 00:06:23,800 --> 00:06:26,240 Speaker 1: they could just sort of decided on statutory grounds. Is 116 00:06:26,279 --> 00:06:27,719 Speaker 1: there a way for them to do that if they 117 00:06:27,800 --> 00:06:30,080 Speaker 1: find they can draw a lines, well, could they could 118 00:06:30,080 --> 00:06:33,400 Speaker 1: decide that this is just not disparaging um. But but 119 00:06:33,800 --> 00:06:35,920 Speaker 1: that that did not really come up. In fact, I 120 00:06:35,960 --> 00:06:38,480 Speaker 1: don't think it came up at all in the argument 121 00:06:39,560 --> 00:06:43,200 Speaker 1: it um. Uh, you know, would involve them making the 122 00:06:43,279 --> 00:06:46,200 Speaker 1: kind of fact based judgment called that the Supreme Court 123 00:06:46,240 --> 00:06:48,600 Speaker 1: doesn't really like to make it. Would you know, it 124 00:06:48,640 --> 00:06:51,239 Speaker 1: might be a way of of uh, you know, getting 125 00:06:51,240 --> 00:06:53,000 Speaker 1: out of the cases they decided they don't want to 126 00:06:53,040 --> 00:06:55,960 Speaker 1: decide very much. But this is this is a court 127 00:06:56,040 --> 00:06:59,960 Speaker 1: that likes First Amendment cases, likes First Amendment issues. They weren't, 128 00:07:00,360 --> 00:07:03,200 Speaker 1: you know, being shy about grappling with these big questions. 129 00:07:03,200 --> 00:07:06,480 Speaker 1: They just, uh, we're struggling a little bit to figure 130 00:07:06,480 --> 00:07:10,200 Speaker 1: out where to draw the line. Greg, thank you very much. 131 00:07:10,280 --> 00:07:14,080 Speaker 1: That's Greg Store, Bloomberg Supreme Court reporter and our esteemed 132 00:07:14,080 --> 00:07:17,320 Speaker 1: co host here on Bloomberg Law talking about an argument 133 00:07:17,360 --> 00:07:19,720 Speaker 1: today in on a First Amendment case in a trademark 134 00:07:19,720 --> 00:07:21,000 Speaker 1: case in the Supreme Court