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[KHarvey16]

But of course the government denies services all the time based on speech. You seem to wanna make a driver's license example: if I go in and fail the test I don't get a license. That I was exercising my right to free speech by saying "yellow light means go faster" doesn't protect me from being denied a license, lol.

That isn't a speech issue, that's simply giving an incorrect answer and failing to meet the standards for a license. That's not seriously an argument, is it?

 

[ZackieChan]

context matters.

denying a trademark because it is "offensive" = limitation of speech

denying a trademark because someone else has it = NOT a limitation of speech


as it pertains to this case you cannot deny a trademark because it is "offensive" -- that is a function of censorship. denying a trademark because someone else has it is a normal function of the trademark system.

what are you asking to understand really?




plagiarism isn't free speech. its copying someone else's free speech for your monetary gain. stealing IP/copyright law is different from trademark laws.

Again, what is the limitation on speech that occurs when a trademark registration is denied, no matter the grounds for the denial?

 

[not psycho]

Trademarks have some of the same problems as patent trolls. Someone successfully trademarked the mathematical constant Pi with a period after it, then tried to ban any use of Pi itself because it was "confusingly close" to their trademark. Paris Hilton trademarked "That's hot" and has successfully sued over it. The word "Bananas" was trademarked.

We should be making it much harder to trademark anything, and making the trademarks more narrow. Apple should be able to stop people from selling computer equipment under the Apple name, but should not be able to stop people from selling clothing with the word Apple on it. Nobody should have been allowed to trademark Pi, that was bananas (which also should not have been given a trademark). I don't see why the Redskins should have a monopoly on a pre-existing racial slur. Anyone who wants to be reviled and boycotted should be able to use it (just not to create a rival NFL team).

 

[GoldenEye 007]

Again, what is the limitation on speech that occurs when a trademark registration is denied, no matter the grounds for the denial?

The limit on objectionable speech cited as the core reason for the denial? The grounds of the denial are critical.

It's ok for them to deny a mark based on established and relevant criteria, but it can't be based on the notion they found the mark objectionable.

 

[davepoobond]

Again, what is the limitation on speech that occurs when a trademark registration is denied, no matter the grounds for the denial?

you are asking the question in reverse. You are coming from a standpoint that trademark is not free speech. It is considered free speech by default in this discussion. If you deny free speech AS THE GOVERNMENT, it is a violation of constitution -- in this case the reason being that it is "OFFENSIVE" amounts to censorship, which is a denial of free speech BY THE GOVERNMENT


there wasn't a technical reason why they couldnt register the trademark -- someone else didn't have it already or whatever

 

[Stumpokapow]

Well if this desperate legal gambit from the government to stop the Redskins didn't work, maybe they can move on to a more productive approach, like initiating Sherman Act proceedings against the NFL or making an aggressive move on CTE. It'd be like getting Capone on racketeering, but who cares?

On the issue of the case, I don't necessarily think the ruling makes sense but given that this is the first time this issue is coming up by law there don't seem to be much in the way of broader ramifications. This was an interesting legal trick to try to stop the Redskins. I applaud the creative lawyers who came up with it, but if it fizzles they should just move on to the next one. This is very much an end justifies the means situation.

 

[freethoughtbubble]

Well if this desperate legal gambit from the government to stop the Redskins didn't work, maybe they can move on to a more productive approach, like initiating Sherman Act proceedings against the NFL or making an aggressive move on CTE. It'd be like getting Capone on racketeering, but who cares?

On the issue of the case, I don't necessarily think the ruling makes sense but given that this is the first time this issue is coming up by law there don't seem to be much in the way of broader ramifications. This was an interesting legal trick to try to stop the Redskins. I applaud the creative lawyers who came up with it, but if it fizzles they should just move on to the next one. This is very much an end justifies the means situation.

Uh, this case wasn't about the Redskins -- it concerned an asian-american band trying to subvert racial stereotypes with an ironic name, The Slants.

As for the bolded, just wow.

Edit: to elaborate, the worthwhile end of getting rid of the Redskins does not justify a means that infringes on The Slant's right to be The Slants. The court got it right here.

 

[WonkyPanda]

So you're arguing about something I'm not arguing about, then presenting the argument I AM making as "patently wrong on many, many levels," without stating those levels. Again, the granting of a trademark registration gives them more rights, but no less rights than they would have had if they hadn't been granted that registration. In fact, GRANTING the registration to ONE party effectively suppresses the ability of other parties to use that particular speech. Which is the greater crime?



Again, how is the denial of a registration censoring or preventing the speech? As with the Islamisation of America mark denoted in the case, how is the trademark holder prevented from using that mark? They just don't have access to the affirmative rights granted by the USPTO. I'm also not buying the courts analogies to things like registering a corporation, but whatever. I'm interested to see how this one shakes out.

Because the foundation of the 1A is the prevention of punishment due to free speech (expressive, commercial, etc.); it's the bedrock of the Amendment (as eloquently put by the 4th Cir.).

The court found that the Government was effectively coercing 'The Slants' to change their name because they wouldn't be afforded the same protection of other bands, like The Kooks, as an example, because their name is disparaging on its face.

That disparagement, that "disapproval" is, in and of itself, a coercive censorship by the Government. The PTO is essentially saying, "hey, your name is offensive, so we're not going to give you commercial protection," thereby effectuating an "economic coercion."

Absolute prohibition and mere penalization is still in contravention to the purpose of the 1A. Section 2(a) of the Lanham Act has been a large issue since its inception and it's clear that mere disapproval of a name/expression isn't a valid enough reason to tell somebody that they won't be afforded the same economic expression as others because, for the time being, their mark is considered sensible to people.

 

[Stumpokapow]

Uh, this case wasn't about the Redskins -- it concerned an asian-american band trying to subvert racial stereotypes with an ironic name, The Slants.

Yes, I did catch that, but I believe the end game of this is the Redskins case--I think that's the reason the initial registration was refused and the reason the government would like to fight. I think this seems kinda evident given that it was not a routine practice for this to be regulated or litigated until recently and the discussion is monopolized by the Redskins issue. I suspect government will appeal up to the Supremes, and I suspect the main reason why is the Redskins. I didn't that that would be a controversial assessment.

RE: Ends justify the means; it's rarely true that the ends justify the means because of the potential collateral damage and negative consequences. In this case, I don't see broad potential for negative effects. If the US government goes after the NFL on antitrust issues as a way to backdoor an attack on the Redskins name, then the worst case scenario is that they win on the antitrust issue and... the abusive sports monopoly that extorts taxpayers successfully gets broken up and replaced with something more competitive and fair? If they go after the NFL on CTE as a backdoor on the Redskins name, then the worst case scenario is that we win and the NFL is forced to deal with the CTE or pay out? These are win-win situations.

Edit: to elaborate, the worthwhile end of getting rid of the Redskins does not justify a means that infringes on The Slant's right to be The Slants. The court got it right here.

As a matter of public policy, I don't think trademark protection is free speech or free expression and I would like to see the government more aggressively deny the state's blessing to their monopoly IP rights. The state of nature is that IP is not recognized, whereas the state of nature on speech is that speech is allowed. Affirmatively blessing speech isn't the same thing as allowing speech. But that's sort of a side thing, because I also don't think a band is materially hurt by not being able to trademark their name. So I'm not seeing it.

 

[freethoughtbubble]

Yes, I did catch that, but I believe the end game of this is the Redskins case--I think that's the reason the initial registration was refused and the reason the government would like to fight. I think this seems kinda evident given that it was not a routine practice for this to be regulated or litigated until recently and the discussion is monopolized by the Redskins issue. I suspect government will appeal up to the Supremes, and I suspect the main reason why is the Redskins. I didn't that that would be a controversial assessment.

RE: Ends justify the means; it's rarely true that the ends justify the means because of the potential collateral damage and negative consequences. In this case, I don't see broad potential for negative effects. If the US government goes after the NFL on antitrust issues as a way to backdoor an attack on the Redskins name, then the worst case scenario is that they win on the antitrust issue and... the abusive sports monopoly that extorts taxpayers successfully gets broken up and replaced with something more competitive and fair? If they go after the NFL on CTE as a backdoor on the Redskins name, then the worst case scenario is that we win and the NFL is forced to deal with the CTE or pay out? These are win-win situations.

I won't comment on the antitrust or CTE angles because I don't know enough about them. I'm strictly talking about the First Amendment issue.

As a matter of public policy, I don't think trademark protection is free speech or free expression and I would like to see the government more aggressively deny the state's blessing to their monopoly IP rights. The state of nature is that IP is not recognized, whereas the state of nature on speech is that speech is allowed. Affirmatively blessing speech isn't the same thing as allowing speech. But that's sort of a side thing, because I also don't think a band is materially hurt by not being able to trademark their name. So I'm not seeing it.

First, no one is claiming that trademark protection is free speech -- the speech in question is the naming of the band; the infringement is the PTO's determination that the name is "offensive" and the subsequent denial of legal protections based on that arbitrary determination; the restriction on speech is that there will be a chilling effect on bands or companies like The Slants. The issue is not whether the government can deny TM protections, but on what ground it can do it. This decision only says that the government cannot deny valuable legal rights simply because it does not agree with a particular viewpoint.

Second, of course a band is materially and legally injured when it is denied rights or protections under the law. You may not think that's a real injury, but no court would agree with you.

 

[GoldenEye 007]

As a matter of public policy, I don't think trademark protection is free speech or free expression and I would like to see the government more aggressively deny the state's blessing to their monopoly IP rights. The state of nature is that IP is not recognized, whereas the state of nature on speech is that speech is allowed. Affirmatively blessing speech isn't the same thing as allowing speech. But that's sort of a side thing, because I also don't think a band is materially hurt by not being able to trademark their name. So I'm not seeing it.

A government agency cannot define what is objectionable or not and use that as a basis for an adverse decision against someone. Not unless they are meeting the extremely narrow tests the Supreme Court generally defines. That's where it becomes a free speech issue.

 

[Stumpokapow]

The first amendment means you can't be denied a service provided by the state based on speech. Copyright is administered by the government and obviously must abide by the rules of that government.

A government agency cannot define what is objectionable or not and use that as a basis for an adverse decision against someone. Not unless they are meeting the extremely narrow tests the Supreme Court generally defines. That's where it becomes a free speech issue.

It may easily constitutionally be that case, but as I noted in my post I was referring to (my opinion on) the public policy wisdom of such an approach. I do not think IP protection is speech. Regardless, how do you square this with Walker v. Texas Division, SCV (The state is not required to issue vanity plates spotlighting groups it disagrees with, but can issue vanity plates spotlighting groups it agrees with)?

 

[WonkyPanda]

It may easily constitutionally be that case, but as I noted in my post I was referring to (my opinion on) the public policy wisdom of such an approach. I do not think IP protection is speech. Regardless, how do you square this with Walker v. Texas Division, SCV (The state is not required to issue vanity plates spotlighting groups it disagrees with, but can issue vanity plates spotlighting groups it agrees with)?

That's actually address in Tam:

The government’s argument in this case that trade- mark registration amounts to government speech is at odds with the Supreme Court’s analysis in Walker and unmoored from the very concept of government speech. When the government registers a trademark, the only message it conveys is that a mark is registered. The vast array of private trademarks are not created by the gov- ernment, owned or monopolized by the government, sized and formatted by the government, immediately under- stood as performing any government function (like unique, visible vehicle identification), aligned with the government, or (putting aside any specific government- secured trademarks) used as a platform for government speech. There is simply no meaningful basis for finding that consumers associate registered private trademarks with the government.

Indeed, the PTO routinely registers marks that no one can say the government endorses. See, e.g., RADICALLY FOLLOWING CHRIST IN MISSION TOGETHER, U.S. Reg. No. 4,759,522; THINK ISLAM, U.S. Reg. No. 4,719,002 (religious marks); GANJA UNIVERSITY, U.S. Reg. No. 4,070,160 (drug-related); CAPITALISM SUCKS DONKEY BALLS, U.S. Reg. No. 4,744,351; TAKE YO PANTIES OFF, U.S. Reg. No. 4,824,028; and MURDER 4 HIRE, U.S. Reg. No. 3,605,862. As the government itself explains, “the USPTO does not endorse any particular product, service, mark, or registrant” when it registers a mark. Appellee’s En Banc Br. 44. For decades, the gov- ernment has maintained that

The government does not own the trade- mark designs or the underlying goods to which the trademark is affixed as the state owned the license plates in Walker.

There's more discussion in the Opinion, but I think that excerpt gets the point across.

 

[Stumpokapow]

That's actually address in Tam:

There's more discussion in the Opinion, but I think that excerpt gets the point across.

There's nothing in that that I especially disagree with, although I'll note that the government routinely registers vanity plates that no one would say they endorse (i.e. Local Sports Team type plates) and that didn't undermine Walker--if I remember correctly, the majority didn't address it even though the dissent teased them about it.

I guess my trouble here is that I do think the benefit associated with intellectual property is in a sense government speech. Especially since we're dealing with trademarks rather than copyrights, which I think are more meaningfully divorced from any sense of government endorsement. I'm not sure that I can articulate that more concretely, but I don't think the government should have been forced to issue a trademark to Capitalism Sucks Donkey Balls either.

Finally re other posters on the wisdom of denying these guys a trademark given that they clearly aren't racist, sure, fine--this seems like arguing that the problem with Bong Hits 4 Jesus being restricted is that Bong Hits 4 Jesus is a good message and the school should have supported it--but kinda besides the broader legal question

 

[KHarvey16]

It may easily constitutionally be that case, but as I noted in my post I was referring to (my opinion on) the public policy wisdom of such an approach. I do not think IP protection is speech. Regardless, how do you square this with Walker v. Texas Division, SCV (The state is not required to issue vanity plates spotlighting groups it disagrees with, but can issue vanity plates spotlighting groups it agrees with)?

License plates are considered government speech, not private speech. They are issued and designed by the government.

 

[GoldenEye 007]

It may easily constitutionally be that case, but as I noted in my post I was referring to (my opinion on) the public policy wisdom of such an approach. I do not think IP protection is speech. Regardless, how do you square this with Walker v. Texas Division, SCV (The state is not required to issue vanity plates spotlighting groups it disagrees with, but can issue vanity plates spotlighting groups it agrees with)?

IP protection itself might not be. But when the decision to issue it is due to a government agency's arbitrary definition of objectionable, it likely becomes one as this court found.

As for the license plate thing, I don't know. I'll be honest and say my legal knowledge is next to nothing. Only thing I could imagine is that a license plate technically isn't your property? It's owned by the state generally, so you're not ever being materially harmed if a vanity plate design is denied.

I also think most DMVs generally have established guidelines on what can be produced on vanity plates.

Edit: Wouldn't a better comparison be a state refusing to register your car and issuing a license plate because the car had something racist painted on it?

 

[Stumpokapow]

License plates are considered government speech, not private speech. They are issued and designed by the government.

I am pretty unconvinced that the distinction between a trademark and a license plate should be that one involves an act of graphic design. WonkyPanda's excerpt seems something far closer to a meaningful distinction between the two.

 

[KHarvey16]

I am pretty unconvinced that the distinction between a trademark and a license plate should be that one involves an act of graphic design. WonkyPanda's excerpt seems something far closer to a meaningful distinction between the two.

The plate isn't really yours, it belongs to the government issuing it. It's the difference between being able to design your business card and your own employee ID. One belongs to you, the other does not. The government in its role as a protector of IP claims no ownership or responsibility for that IP, merely the duty to protect its use through the legal system.

 

[WonkyPanda]

There's nothing in that that I especially disagree with, although I'll note that the government routinely registers vanity plates that no one would say they endorse (i.e. Local Sports Team type plates) and that didn't undermine Walker--if I remember correctly, the majority didn't address it even though the dissent teased them about it.

I guess my trouble here is that I do think the benefit associated with intellectual property is in a sense government speech. Especially since we're dealing with trademarks rather than copyrights, which I think are more meaningfully divorced from any sense of government endorsement. I'm not sure that I can articulate that more concretely, but I don't think the government should have been forced to issue a trademark to Capitalism Sucks Donkey Balls either.

Finally re other posters on the wisdom of denying these guys a trademark given that they clearly aren't racist, sure, fine--this seems like arguing that the problem with Bong Hits 4 Jesus being restricted is that Bong Hits 4 Jesus is a good message and the school should have supported it--but kinda besides the broader legal question

I don't really disagree. Besides thinking that Walker is a rather obtuse decision, the reference between what is government endorsement and what isn't is fickle at best. Is really plastering "TEXAS" across the top of Houston Rockets vanity plate enough for someone to say, "Yeah, the Texas Government sure does love the Rockets"?

I don't know, but I do agree that Walker leaves us in this weird place where we need to question at what point do we consider something to be government speech. How much weight do we give public perception to such a question? Does even minimal involvement for government sponsorship, like a vanity plate, really constitute government speech? Do we need something more explicit and pronounced?

At this point, I am ranting. But, obviously, it's not an easy issue to work with and between Walker and Tam, we're trying to reconcile the contours here.

The plate isn't really yours, it belongs to the government issuing it. It's the difference between being able to design your business card and your own employee ID. One belongs to you, the other does not. The government in its role as a protector of IP claims no ownership or responsibility for that IP, merely the duty to protect its use through the legal system.

It's a great point and one that, ultimately, the 4th Cir. honed in on to distinguish Walker.

 

[samn]

I do not understand why this is considered and being treated like a free speech issue. The government isn't denying anybody the use of these offensive terms. All they are saying is we will not guarantee you protection for your racist/bigoted/offensive trademark against piracy, etc.

Imagine if the police refused to protect you because they didn't like your speech. Same deal. Either trademarks are available on equal terms or they're not available at all

 

[DragonSworne]

Imagine if the police refused to protect you because they didn't like your speech. Same deal. Either trademarks are available on equal terms or they're not available at all

So you in favor of giving people exclusive rights to offensive speech?

 

[GoldenEye 007]

So you in favor of giving people exclusive rights to offensive speech?

I think people are in a favor of the government not being able to arbitrarily define what is offensive or not. If that results in people being able to establish trademarks of offensive speech items, then so be it.

 

[SURGEdude]

I think people are in a favor of the government not being able to arbitrarily define what is offensive or not. If that results in people being able to establish trademarks of offensive speech items, then so be it.

The whole concept of offensive speech is dangerous when the government gets to pick and choose seemingly arbitrarily. The lawsuit filed by the team makes it clear that the rules are not applied with any consistency. Of course by strengthening their legal argument they also pretty much came out and said that they recognize their brand is widely considered to be offensive.

The real scandal with the Redskins situation is that the NFL doesn't have the fucking balls to threaten them with sanctions and possibly banning them from play unless they rename the franchise in an allotted time.