WASHINGTON — In a decision likely to bolster the Washington Redskins’ efforts to protect their trademarks, the Supreme Court on Monday ruled that the government may not refuse to register potentially offensive names. A law denying protection to disparaging trademarks, the court said, violated the First Amendment.
The decision was unanimous, but the justices were divided on the reasoning.
The decision, concerning an Asian-American dance-rock band called the Slants, was viewed by a lawyer for the Washington Redskins as a strong indication that the football team will win its fight to retain federal trademark protection.
Lisa S. Blatt, a lawyer for the team, said the decision “resolves the Redskins’ longstanding dispute with the government.”
“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government’s opinion,” she said.
The law at issue in both cases denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.”
Four justices said the law could not withstand even the fairly relaxed judicial scrutiny that the Supreme Court applies to commercial speech. Those justices rejected the two government interests that the law was said to advance: protecting disadvantaged groups from demeaning messages and the orderly flow of commerce.
The First Amendment protects offensive speech, Justice Samuel A. Alito Jr. wrote for this group of four justices. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’ ” he wrote, quoting a classic 1929 dissent from Justice Oliver Wendell Holmes Jr.
Justice Alito added that the law’s disparagement clause was far too broad. “It is not an anti-discrimination clause; it is a happy-talk clause,” he wrote.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer joined that part of Justice Alito’s opinion.
Four other justices would have struck down the law using the more searching First Amendment scrutiny that applies to viewpoint discrimination.
“The danger of viewpoint discrimination,” Justice Anthony M. Kennedy wrote, “is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.”
“To permit viewpoint discrimination in this context is to permit Government censorship,” Justice Kennedy wrote.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Kennedy’s opinion.
Justice Neil M. Gorsuch did not participate in the case, which was argued in January, before he joined the court.
The competing opinions from the two four-justice blocs will mute the extent to which the decision sets precedent in other contexts.
All eight participating justices did agree on some points. They were unanimous in rejecting the argument that federal trademarks are the government’s own speech and thus immune from First Amendment scrutiny of any kind.
In 2015, in a 5-to-4 decision in Walker v. Sons of Confederate Veterans, the Supreme Court ruled that Texas could refuse to allow specialty license plates bearing the Confederate battle flag because the plates were the government’s speech.
Justice Alito, writing for eight justices on Monday, said trademarks are different.
“If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently,” he wrote. “It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.”
The Slants said they did not intend to disparage anyone. Instead, they said, they sought to adopt and reform a disparaging term about Asians, much as some gay people have embraced the term “queer.”
That was significant, Justice Kennedy wrote. The band wanted, he wrote, “to supplant a racial epithet, using new insights, musical talents, and wry humor to make it a badge of pride.”
The government has applied the law inconsistently when faced with trademarks based on ethnic slurs. It has, for instance, both registered and rejected trademarks for the terms “Heeb,” “Dago,” “Injun” and “Squaw.”
In the Redskins case, the trademark office registered the team’s trademarks in 1967, 1974, 1978 and 1990. In 2014, though, it reversed course and canceled six registrations, saying they disparaged Native Americans.
The team lost before a trial judge in Virginia and appealed to the United States Court of Appeals for the Fourth Circuit, also in Virginia. The appeals court put the case aside while the Supreme Court considered the Slants case, Matal v. Tam, No. 15-1293.
In a second First Amendment case decided Monday, the Supreme Court unanimously struck down a North Carolina law that made it a crime for registered sex offenders to use Facebook and many other websites.
The law was challenged by Lester Packingham, a registered sex offender who was convicted of violating it after posting an account of having a traffic ticket dismissed. “God is good,” he wrote on Facebook.
Mr. Packingham, who had pleaded guilty in 2002 to taking indecent liberties with a minor when he was a 21-year-old student, said the law violated the First Amendment.
Justice Kennedy, writing for a five-justice majority, said the internet is transforming American life and has turned into “the modern public square.” Denying access to it, he wrote, violates the First Amendment.
“The statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens,” Justice Kennedy wrote. “Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.”
“By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,” he wrote.
Justices Ginsburg, Breyer, Sotomayor and Kagan joined Justice Kennedy’s opinion. Justice Gorsuch did not participate in the case.
In a concurrence, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, agreed with the result in the case but did not join what he called the “loose rhetoric” in Justice Kennedy’s opinion.
The North Carolina law was too broad, Justice Alito wrote, but states retain many legal tools to protect children on the internet.
Read more at NYTIMES
Gene Simmons is making a move that might have some rock fans shooting him a hand gesture — in the form of a one-finger salute.KISS bassist Simmons has filed an application to trademark the iconic “horns” hand gesture, a staple at rock concerts for decades.
The application, filed June 9, is described as “a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular.” (See image from the application below.)
The gesture was first used by Simmons “At least as early as 11/14/1974,” according to the application, and has been used for “Entertainment, namely, live performances by a musical artist, personal appearances by a musical artist.”
A declaration filed by the musician with the U.S. Patent and Trademark Office states, “Gene Simmons … declares: That he is the applicant herein; he believes the applicant to be the owner of the mark sought to be registered; that to the best of his knowledge and belief no other person, firm, corporation or association has the right to use said mark in commerce, either in the identical form or in such near resemblance thereto as may be likely, when applied to the goods or services of such other person, to cause confusion, or to cause mistake, or to deceive; that the facts set forth in this application are true; and that all statements made herein of his knowledge are true, and all statements made on information and belief are believed to be true.”
Which doesn’t exactly roll off the tongue — even a jumbo-sized tongue such as Simmons’.
Copyright Office Releases an Updated Draft of the Compendium of U.S. Copyright Office Practices, Third Edition
Acting Register of Copyrights Karyn Temple Claggett today released a revised draft of the Compendium
of U.S. Copyright Office Practices, Third Edition. This draft includes the first proposed updates to the
Compendium since its release in December 2014. The public draft is available on the Office’s website at
https://copyright.gov/comp3/draft.html. It will go into effect on July 3, 2017.
The Compendium is the administrative manual of the Register of Copyrights concerning the mandate
and statutory duties of the Copyright Office under Title 17 of the United States Code. See 37 CFR. §
201.2(b)(7). The proposed updates are the result of a comprehensive review of the Office’s practices
and procedures. The draft revisions to the registration chapters clarify how and when the Office
communicates with applicants and how it handles duplicate claims, deposit requirements, and claims
involving multiple works, among other improvements. The update also provides preliminary guidance
for claims involving useful articles based on the Supreme Court’s recent decision in Star Athletica v.
PHOTO BY BLACK MACAQUE, CAMERA OWNED BY DAVID SLATER
“Wildlife photographer David Slater, who was trekking through the Indonesian wilderness in 2011, when a group of monkeys came upon him and his equipment. “At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection,” Slater said at the time. “They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button.”
A crested black macaque snuck off with one of his cameras and took, according to the Telegraph, “hundreds of selfies,” most of which were blurry and unusable. Save for this: the pristine, in-focus beauty of a photograph of the female macaque’s grinning face pictured above, which gave Slater a brief brush with fame and plastered the monkey’s selfie on websites everywhere.”
Read More: FastCompany
“More recently, new technologies promise to do for a variety of physical goods and even services what the Internet has already done for information… While none of these technologies are nearly as far along as the Internet, they share two essential characteristics with the Internet: they radically reduce the cost of production and distribution of things, and they separate the informational content of those things (the design) from their manufacture. Combine these four developments – the Internet, 3D printing, robotics, and synthetic biology – and it is entirely plausible to envision a not-too-distant world in which most things that people want can be downloaded and created on site for very little money. The role of IP in such a world is both controverted and critically important.”