WEBVTT - Supreme Court Hears Trademark Case (Audio)

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<v Speaker 1>In two thousand and six, a rock band comprised entirely

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<v Speaker 1>of Asian America's named itself the Slants, with the idea

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<v Speaker 1>that it would reappropriate a term that has been used

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<v Speaker 1>to denigrade Asian Americans. Five years later, the leader of

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<v Speaker 1>the band so had to register their name as a

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<v Speaker 1>trademark with the federal government, but the U. S. Patent

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<v Speaker 1>and Trademark Office said no, because federal law prohibits registration

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<v Speaker 1>of a trademark that disparages people. The leader that leader

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<v Speaker 1>of the band, Simon Tam, then sued the government on

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<v Speaker 1>the ground that the denial violated his First Amendment right

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<v Speaker 1>to free speech. And today the Supreme Court heard arguments

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<v Speaker 1>in TAM's case. Here to talk with it, about it,

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<v Speaker 1>with us about it is our Bloomberg Law co host

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<v Speaker 1>Greg Store, who's also Bloomberg Supreme Court reporter. Greg was

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<v Speaker 1>in the courtroom today and we're gonna be talking to

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<v Speaker 1>him about the argument. But first, Greg, why don't we

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<v Speaker 1>talk about a decision the Supreme Court issued uh today

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<v Speaker 1>and then we'll get to the trademarketing that they had

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<v Speaker 1>a decision about Fannie made, didn't they? They did? And

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<v Speaker 1>I'd love to tell you it's the most closely watched

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<v Speaker 1>case of the term, Michael, but that's not not the case,

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<v Speaker 1>but it's still important for Fanning May. Essentially the question

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<v Speaker 1>is whether Fanning May was was sued and tried to

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<v Speaker 1>move um a lawsuit into federal courts and often, uh,

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<v Speaker 1>you know, big corporate defendants like to be in in

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<v Speaker 1>federal court. They think they stand a better chance of winning.

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<v Speaker 1>And the Supreme Court unanimously said that there's a provision

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<v Speaker 1>in federal law that that that Fanning May thought gave

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<v Speaker 1>federal courts jurisdiction over any case involving Fanning May. And

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<v Speaker 1>the Supreme Court unanimously said, no, that's not the case.

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<v Speaker 1>An opinion by justice so do mayor so a setback

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<v Speaker 1>for Fanning May, But really just about where Fanning May

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<v Speaker 1>have to have to uh can be in court, not

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<v Speaker 1>not whether they can be sued. So, Greg, now let's

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<v Speaker 1>go to one of the more closely watched cases and

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<v Speaker 1>one of the more interesting ones from my point of view,

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<v Speaker 1>and that is the case about disparaging trademarks. There were

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<v Speaker 1>oral arguments today. You were there, what was the main

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<v Speaker 1>you for the justices? Yeah, it is a really interesting case.

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<v Speaker 1>Student federal trademark law does and has for for seventy

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<v Speaker 1>years or so, say that trademark examiners can refuse to

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<v Speaker 1>uh register a trademark and we can talk later about

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<v Speaker 1>what what that involves, but that's it's a benefit for

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<v Speaker 1>a trademark owner, uh if the name is disparaging of

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<v Speaker 1>of somebody else or some other thing. And in the

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<v Speaker 1>case of this group, the Slants trademark examiners concluded it

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<v Speaker 1>was disparaging, even though as as Michael describe, that's not

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<v Speaker 1>what the members of the band say they're they're trying

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<v Speaker 1>to do. And so the question is whether that sort

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<v Speaker 1>of distinction is constitutionally appropriate for the government to do

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<v Speaker 1>in the general sense. In the courtroom are the big

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<v Speaker 1>question was whether that was impermissible viewpoint discrimination by the

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<v Speaker 1>federal government. Well, on first blush, you know, it does

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<v Speaker 1>seem like g they're just expressing something here, they're trying

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<v Speaker 1>to reclaim something. It's very political. You think it's the

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<v Speaker 1>heart of the free speech clause of the First Amendment.

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<v Speaker 1>On the other hand, what did the government argue, Well,

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<v Speaker 1>the government's argument is that they can still say it.

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<v Speaker 1>Nobody is questioning their ability to call themselves this land,

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<v Speaker 1>and in fact they can sue UH for trademark infringement

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<v Speaker 1>for example under state common law. The question that the

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<v Speaker 1>government says is whether we're going to give them this

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<v Speaker 1>added benefit. This is a registry and basically you can

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<v Speaker 1>if you're thinking about, you know, naming your own rock band,

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<v Speaker 1>you can go to this registry and see see you know,

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<v Speaker 1>what names are already taken and make sure you're not

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<v Speaker 1>infringing on anything. Um And it also, um you know,

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<v Speaker 1>give some legal benefits, some presumptions when you're in court

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<v Speaker 1>if you're the owner of a registered trademark. And so

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<v Speaker 1>the government says the fact that we're prohibiting anybody from

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<v Speaker 1>saying anything, We're just deciding where that we're going to

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<v Speaker 1>confer a benefit, and when we do that, we have

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<v Speaker 1>a lot more discretion. Loo Greg. It seems as if

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<v Speaker 1>there is too too much discretion. I mean, there are

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<v Speaker 1>bands who have been recognized trademarks for example and w

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<v Speaker 1>A Uncle Cracker. Those are those are bands that do

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<v Speaker 1>have trademarks. And so isn't it viewpoint discrimination? Yeah? That

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<v Speaker 1>that that is certainly one of the arguments and another

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<v Speaker 1>way of thinking about it. I'll though this didn't come

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<v Speaker 1>up as much as I might have thought it would have.

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<v Speaker 1>Is that this provision in the law just talks about

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<v Speaker 1>disparaging um, and it doesn't really define what what exactly

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<v Speaker 1>that is. And so you do have these results that

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<v Speaker 1>seem like they are they are inconsistent with one another. Uh.

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<v Speaker 1>And that was the general sets in the courtroom that

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<v Speaker 1>there was um that there was real concern that the

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<v Speaker 1>government uh did have the ability to say this name

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<v Speaker 1>is okay, this name is not okay. But the justice

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<v Speaker 1>did have some concerns about how to draw lines here,

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<v Speaker 1>didn't they They did, it wasn't and they didn't get

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<v Speaker 1>a whole lot of help from Mr TAM's lawyer on that. Um.

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<v Speaker 1>You know, one question that came up in't ever really

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<v Speaker 1>got answered was or well, how does it you know,

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<v Speaker 1>could the government, you say, a local government have a

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<v Speaker 1>Shakespeare festival where what we're gonna do is we're gonna,

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<v Speaker 1>you know, talk about how great Shakespeare was and um,

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<v Speaker 1>uh you know, isn't that a form of viewpoint discrimination?

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<v Speaker 1>But in a very limited context. And and so what

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<v Speaker 1>they seemed to be really searching for was to try

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<v Speaker 1>to figure out how we could say that trademark is

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<v Speaker 1>different from all these other contexts where um, the government

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<v Speaker 1>might uh legitimately be able to say, in this particular context,

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<v Speaker 1>we're we're only um talking about certain things. Right. How

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<v Speaker 1>did the Federal Circuit, which handles these cases, handle this below, Well,

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<v Speaker 1>the Federal Circuit decided with with the band the band um.

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<v Speaker 1>Mr Tam and said that this was a violation of

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<v Speaker 1>the First Amendment, which which essentially made of a guarantee

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<v Speaker 1>that the Supreme Court would would take up the issue. Um,

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<v Speaker 1>there is another case I should point out that that

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<v Speaker 1>involves the Washington Redskins that may or make them out

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<v Speaker 1>the same way or may not come out the same way. Well,

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<v Speaker 1>you know, TAM's lawyer argued, if I understood his argument correctly,

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<v Speaker 1>that there is a way to for the court to

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<v Speaker 1>decide this without getting to the constitutional question. That is,

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<v Speaker 1>they could just sort of decided on statutory grounds. Is

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<v Speaker 1>there a way for them to do that if they

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<v Speaker 1>find they can draw a lines, well, could they could

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<v Speaker 1>decide that this is just not disparaging um. But but

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<v Speaker 1>that that did not really come up. In fact, I

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<v Speaker 1>don't think it came up at all in the argument

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<v Speaker 1>it um. Uh, you know, would involve them making the

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<v Speaker 1>kind of fact based judgment called that the Supreme Court

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<v Speaker 1>doesn't really like to make it. Would you know, it

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<v Speaker 1>might be a way of of uh, you know, getting

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<v Speaker 1>out of the cases they decided they don't want to

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<v Speaker 1>decide very much. But this is this is a court

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<v Speaker 1>that likes First Amendment cases, likes First Amendment issues. They weren't,

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<v Speaker 1>you know, being shy about grappling with these big questions.

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<v Speaker 1>They just, uh, we're struggling a little bit to figure

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<v Speaker 1>out where to draw the line. Greg, thank you very much.

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<v Speaker 1>That's Greg Store, Bloomberg Supreme Court reporter and our esteemed

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<v Speaker 1>co host here on Bloomberg Law talking about an argument

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<v Speaker 1>today in on a First Amendment case in a trademark

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<v Speaker 1>case in the Supreme Court