Federal Circuit’s COCKSUCKER Decision Sucks

December 20, 2012

cork soaker

As many long-time readers know, Section 2(a) of the Trademark Act is one of my pet peeves. This is the section of the Trademark Act that gives pretty much unfettered discretion to a trademark examiner to deny a trademark registration on the basis that the mark itself is “immoral” or “scandalous.” The Federal Circuit just decided In Re Fox, in which it reaffirmed some very bad law, and in which it lacked the integrity to address some Constitutional fictions upon which most 2(a) denials are based.

“[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it[] (a) [c]onsists of or comprises immoral, deceptive, or scandalous matter.” 15 U.S.C. § 1052.

One of the most absurd elements of a 2(a) denial is that the evidentiary standard is so open to abuse. An examiner may prove “immorality” or “scandalousness” by simply establishing that the mark is “vulgar.” In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1340 (Fed. Cir. 2003). Essentially, if the examiner finds a single online dictionary or chat board where someone says “that’s vulgar,” then that is usually enough for the examiner, the TTAB, and the Federal Circuit.

So, another 2(a) denial is just a “ho hum” event. But, this portion of the opinion shows just how little respect the Federal Circuit has for Constitutional issues. I mean, come on guys, at least try and make it look like you didn’t just mail it in.

The prohibition on “immoral . . . or scandalous” trademarks was first codified in the 1905 revision of the trademark laws, see Act of Feb. 20, 1905, Pub. L. No. 58- 84, § 5(a), 33 Stat. 724, 725. This court and its predeces- sor have long assumed that the prohibition “is not an attempt to legislate morality, but, rather, a judgment by the Congress that [scandalous] marks not occupy the time, services, and use of funds of the federal government.” In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (quotation marks omitted). Because a refusal to register a mark has no bearing on the applicant’s ability to use the mark, we have held that § 1052(a) does not implicate the First Amendment rights of trade- mark applicants. See id. (Op. at 2)

I find it outrageous not just because the court is wrong, but because the court was so glib and dismissive of the First Amendment.

Trademarks propose a commercial transaction; speech that proposes a commercial transaction is “commercial speech” and thus subject to First Amendment protection. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Trademarks convey messages about the type, cost and quality of the product or service associated with the mark. See Friedman v. Rogers, 440 U. S. 1, 11 (1979). The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.

Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley, 660 F.2d 41 (Fed Cir. 1981).

McGinley is where we get the idea that since trademark applicants are still free to use the trademarks, then there is no abridgment of speech if your trademark is denied registration due to its content. However, this reasoning is simply shoddy and contrary to a body of First Amendment jurisprudence. For example, in striking down New York’s “Son of Sam” law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 115 (1991). In the Son of Sam case, the authors were still free to write, but were denied the financial benefits of their labors. That was the end of that law. This appears to completely dispense with the McGinley reasoning.

Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998) analyzed a similar issue. In that case, the appellant sought to use a trademark of a frog giving the finger. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose. Not binding on the Fed. Cir., but I think that the Fed. Cir. is the wrong place to challenge McGinley. There is no indication that the Fed. Cir. will ever admit that it was wrong in McGinley, and every time it gets a chance, it doubles down.

Finally, there can be no clearer authority for the death of Section 2(a) than Lawrence v. Texas. (“The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”)

“Morality” is not a valid reason to confer or deny a governmental benefit – instead the government must articulate a reason why registration of a mark might be harmful, and then apply that reason to the particular circumstances at hand, in a narrow manner. The government has done none of this in this case, nor in any other 2(a) denial.

2(a) Delendum Est!

Talking to your kids about gay marriage

December 10, 2012

I used to have neighbors in Flori-duh, whose argument (to me anyhow) against gay marriage was “what am I supposed to tell my kids?

Louis CK had a funny reply to that.

“It doesn’t have ANY effect on your life. What do you care? People try to talk about it like it’s a social issue. Like when you see someone stand up on a talk show and say ‘How am I supposed to explain to my child that two men are getting married?’ I dunno, it’s your shitty kid, you fuckin’ tell ‘em. Why is that anyone else’s problem? Two guys are in LOVE but they can’t get married because YOU don’t want to talk to your ugly child for five fuckin’ minutes?”

The issue came up with my daughter, yesterday. Age 4.

She asked what I was reading. I told her, “an article about a Supreme Court case” – 5 questions later, and it was time to make something up, or just tell her, and see if she got it.

I brought up one couple we know who are legally married (and happen to be my son’s “godfathers”). I told her “they are married, like mama and daddy, because they love each other.”

“Oh” she said.

I then told her about our cousin and his boyfriend of 25 years – who we also refer to as “cousin.” I said “they love each other just as much, but they are not allowed to get married, because they live in Las Vegas, which is in Nevada.”

“Oh. That’s not fair.”

There… conversation had. That wasn’t so hard.

I’m glad that my four year old understands the Equal Protection Clause better than some judges. When the gay marriage cases come before the Supreme Court, I’ll be impressed if Samuel Alito or Clarence Thomas are able to show as much intellect and wisdom as a girl who thinks that Santa Claus is a member of the First Amendment Lawyers’ Association.

The slow creep of the TSA / new site review

October 27, 2012

By J. DeVoy

Roosh, the celebrated love tourist and proprietor of Roosh V, has a new project titled Return of Kings.  In one of its first posts, he addresses the TSA’s gradual metamorphosis into a pseudo-police force accountable to no one but themselves.

Roosh’s experience is not as jarring as Amy Alkon’s.  However, it is jarring to read as a citizen of a country that professes to have and protect the Fourth Amendment.

With the flats of his hand he pressed through every inch of my torso. He lifted my shirt slightly and felt around my jean waistline. Then he ironed my legs and the side of my thighs. He didn’t touch my crotch area. [...] I had thought the pat down was going to be similar to how some nightclubs do it, but it was intimate enough that I’m sure the agent knows I’m not skimping on my deadlifts.

Roosh even comments on the TSA’s proclivity for stealing passenger’s possessions.  While not apropos to his article, it is worth noting that TSA agents have included alleged child molesters, proving once again that there is no bar too low for entry into the blue shirt brigade of losers and misfits.

Finally, a solution is proposed that is equal parts critique of the TSA’s inability to truly fulfill its stated mission and indictment on the complacency of cowed Americans:

It took about four minutes for my pat down procedure while the x-ray machine takes 15 seconds. If just 10% of flyers opt out, the whole thing shuts down and they’ll have no choice but to stop using them. The fact that most Americans don’t want to be inconvenienced for only four minutes tells me how much they care about having an increasingly authoritarian government.

Return of Kings looks to be a kind of introduction to Roosh’s school of lifestyle and travel advice.  If books such as “Bang Poland” and “Don’t Bang Denmark” don’t appeal to you, I feel bad for you.  However, if you’re weary of American culture that chides you for not thinking a costly, debt-financed B.A. from Bovine University is impressive, and skeptical of following the traditional path of a soul-crushing cube job to support a widening wife and your(?) insatiable-yet-ungrateful spawn, the site seems to be a soft introduction to the kind of subversive thoughts that have led others to ditch the American rat-race.

Is there room for exceptionalism in the case of anti-Semitic speech?

October 2, 2012

In Slate, William Saletan asks “How can we ban hate speech against Jews while defending mockery of Muslims?

By “we” he does not mean America — but the entire West. Saletan correctly points out that it is, certainly, less tolerable to engage in “hate speech” that offends Jews than “hate speech” that offends Muslims. He thinks this is deeply hypocritical, calling for equal treatment of this kind of speech — ban it all or tolerate it all. This logic resonates with me as a free speech advocate. But, is it correct? Is there a rational basis, or even a compelling reason, for treating anti-semitic speech differently?

Many of the laws that chap Saletan’s ass are laws in European countries prohibiting pro-nazi speech, or holocaust denial. Perhaps he is correct. Perhaps logic and justice dictate that we consider all speech to be equal. However, I think we do even the cause of free speech a disservice if we do not at least consider the notion that maybe hate speech aimed at Jews is properly placed in a different category than other hate speech.

There is no arguing that Jews have had a unique experience. The Inquisition, pogroms, and then finally the Holocaust – an actual coordinated, industrialized, effort to exterminate an entire race of people from the face of the Earth. Is there no room in the religious discipline of the exaltation of free expression for exceptionalism? When certain speech (in this case anti-Semitic speech) has provably led to one of the most horrific examples of evil that mankind has ever known, is there no argument in favor of devaluing that speech?

I do not say this to endorse exceptionalism in the case of anti-Semitic speech. I have somewhat absolutist views toward free speech. I do, however, think that those of us who hold free speech up as an almost religious concept must be mindful that we remember one of its purposes — wide open and robust debate. We do our cause little service by simply ignoring the possibility that we could be wrong. Saletan’s weakness is not that he is wrong, but that he fails to show any respect for the fact that exceptionalism might be based in something tangible, reasonable, and rational. There is a valid interest in play — the interest of a distinct minority in not being brought to violent extinction. There should be room in any absolutist’s mind for some respect for that interest. Perhaps that interest can be satisfied by something less than exceptionalism, but it can never be satisfied if we simply pretend that it does not exist.

Awfully Convenient…

September 30, 2012

Nakoula Basseley Nakoula, the director of the “Innocence of Muslims” movie, which has been blamed for setting off riots and murders in Islamic countries, has (conveniently?) been arrested for violating the terms of his probation. Among the terms of his probation: He was not allowed to se the Internet or a computer, which I presume he had to do in order to create and distribute his film. (source). From the sounds of it, the guy isn’t the most savory character in the world.

So yeah, it seems to me that he probably violated his probation.

Greg Pollowitz at The National Review wrote:

Listen, if you’re a two-time felon who is out on parole and told not to use an alias in business dealings or use the Internet and then you lie to reporters at the AP and WSJ using your alias and admitting you used the Internet, then what do you think is going to happen? (source)

Which is the only reason that he is now being held without bail, right? (source). Right?

It doesn’t have the slightest bit to do with the content of his film or the way that a bunch of idiots, brainwashed with superstition, reacted to it.

Let us presume that my cynicism is misplaced. Let us presume that it has nothing to do with that. It still sends the wrong message — that when the government does not like your speech, it can find a way to get you, First Amendment or no First Amendment.

Nikki Finke and Dominic Patten, at Deadline Hollywood saw it this way:

His arrest today is an apparent U.S. attempt to appease worldwide Muslims and their clerics and governments demanding for the YouTube video to be removed and its filmmaker punished. In an address on Tuesday condemning the content of the video, President Obama explained, “The strongest weapon against hateful speech is not repression, it is more speech.” This legal action is a way to preserve America’s  First Amendment principles but at the same time find a roundabout but legitimate way to punish Bakoula for the crudely made film that portrays the Muhammad as a religious fraud, womanizer and pedophile. (source)

I’m not saying that Nakoula should get a free pass for his probation violations. I am not saying that Finke and Patten are correct. Pollowitz has a hell of a good point. Nakoula couldn’t have made his probation violations any more public, and thus prosecutors had to do something.

Nevertheless, if Muslims are allowed to riot and kill people because they are offended at how their imaginary friend gets portrayed, I’m allowed to be offended when the government sends the message (on purpose or not) that “if you publish a film that we don’t like, we’ll find a way to put you in jail.”

ACLU sues after middle school girls expelled over Facebook comments

June 14, 2012

The ACLU filed a complaint in the Northern District of Indiana against the Griffith Public School district after it expelled three middle school girls for a lengthy conversation they had on Facebook outside of school hours.  According to the complaint, the conversation “spanned numerous subjects,” beginning with one girl complaining on her Facebook wall about cutting her legs while shaving (#FirstWorldProblems), before turning to which classmates they would kill if given the chance. The comments were littered with the typical cutesy teenage girl sprinklings of emoticons, OMGs, and LOLs, and most of the comments were directed toward the “ugly” girls, a la Mean Girls fashion. The comments were contained to Facebook, and subject and post were not discussed on campus.

Two days later, after another person presented a screen shot to school administrators, the girls were expelled from school for violating student handbook policies on bullying, harassment, and intimidation.  Griffith Public School later informed the girls they were expelled for the remainder of the school year, but would be able to continue to the ninth grade the following year.

The ACLU contends that this action was a violation of the students’ First Amendment Rights, as the comments were “clearly made in jest” and did not constitute a “clear threat.”  The ACLU also states in the complaint that the comments did not disrupt school activities.

Students notoriously have very few rights, and schools generally have had wide latitude to punish activity outside of school.  It will be interesting to see how the case proceeds.

Say What You Like About the Tenets of National Socialism, Dude, at Least it’s an Ethos.

April 26, 2012

I’ve had a soft spot for banned books for many years. It started in high school when my English teacher produced from the dank and cloistered School Board file room a list denouncing certain books as verboten because my fragile teenage mind would be forever ruined by the filth contained on the pages therein.

Needless to say, I spent the next day in a used bookstore locating and purchasing as many of the verboten as I could find. And I am proud to say my home library has since become a cornucopia of evil tomes that the thought police would love to use as kindling. As an aside, and in deference to pop culture, if you want to read a book about kids killing each other, skip The Hunger Games and read Lord of the Flies instead. All the unsettling imagery and none of the teenage fan-girl bullshit. But I digress.

Having a constitutional republic form of government has made Americans lucky enough to have the concept of individual freedoms that many others do not enjoy- particularly relating to speech. The First Amendment, for the most part, prevents said government from banning the publication of books based on their content. OK, I’m still hoping that a magic fairy will drop an uncensored first edition copy of Operation Dark Heart on my doorstep, which will never happen, but barring the odd exception, Americans are free to choose what they will read, no matter how offensive or disgusting it may be to another person. Book banning in this country is, by and large, limited to the handful of frustrated malcontents who don’t want schoolchildren reading this book or that, usually because it has language harsher than “oh, dear” and some flavor of sexual…well…anything.

Citizens of other countries are not so lucky, which brings us to Bavaria. And Mein Kampf. And I do mean Mein Kampf. The famous and controversial screed memoir Adolf Hitler wrote while in prison was first published in 1925. By the time he became Chancellor in 1933, it was immensely popular, and was made much more so during the Third Reich. Then, when World War II ended, the Bavarian government was given the copyright to the book, which it promptly used to squelch the sale, publication, ownership, and distribution of. And it has continued to do so ever since. Please understand that this is perfectly acceptable in Germany; it has no First Amendment and certain kinds of speech in Germany are actually considered criminal, including anti-Semitism and hate speech. So it kind of makes sense a book riddled with both would be kept out of the hands of the public.

The copyright term of protection in Europe is life of the author plus 70 years, as it is here in the States. On April 30, 1945, Der Fuhrer did us all a favor and shuffled himself lose the mortal coil, which gives the Bavarian Government three years to do…something…before Mein Kampf is yanked from its grasp and unleashed upon the unsuspecting masses. In light of this, and to make sure it maximizes its ability to control the work, the Bavarian government has decided to publish, for the first time since World War II, the weird, whiny ramblings of a man-child with serious daddy issues. Source 1. Source 2.

Hooray. But there’s a huge caveat. The Bavarian government’s version is going to be heavily annotated and edited, which is for the explicit purpose to “keep it from being abused for political aims – and to limit profits for future publishers”. This means that what Germans are really going to get is a watered-down, cleansed version with an instruction manual telling them to how to read and what to think. By publishing its version a mere three years before it loses the rights forever, the Bavarian Government admittedly hopes to make future German editions as “commercially unattractive” as possible. And Karl Freller, the director of the Foundation of Bavarian Memorials, said he would seek “intense” discussions with bookshops and publishing houses in the hope that they would voluntarily avoid selling or reprinting un-annotated versions of Mein Kampf when its copyright expires. Oh, irony, how I love thee.

I, for one, am dubious of any government-approved version of a book that it previously deemed socially or politically unacceptable for the masses to read. I am inherently resentful when anyone, especially the government, tries to tell me what to think and it sends a chill up my spine to think that some nameless faceless conglomerate could have the power to deem what should be printed and what should remain hidden. And I believe that Germans are intelligent enough to make their own decisions; there is no need for commentary or editing to prevent frowned upon “political aims”. As a friend of mine recently said, “sunshine is the best disinfectant”. Nobody needs a Disney-fied version of Mein Kampf- they need the original work. And the Bavarian government is doing a large disservice to its citizenry with its attempts to control the dissemination and future publications of the work. They had 67 years to sort it out and chose the “you’re too stupid to read this” route. This reminds me once again just how important the First Amendment is and why we fight so hard to defend it.

I’ve actually read Mein Kampf. I chose to read the English translation as approved by the Third Reich, not some slanted interpretation where a fuzzy-brained academic tells me what it means. And I can tell you Mein Kampf is an exhausting and manic read. It’s ugly, stupid, and in all other ways time better spent cleaning the catbox. Rumor has it Benito Mussolini said the book was boring and he was right. Mein Kampf is boring. And dense. And whiny, rambly, grammatically incorrect, and in all other ways a chore to read. But I forced myself to finish it. Not for some sick need to delve into the macabre, but because it’s that important. That whiny rambling lunatic inspired a nation and went on to kill millions without so much as a “by your leave”. Let that sink in for a minute.

It sets a dangerous precedent to plug our ears and minds to words we don’t want to hear. It is absolutely terrifying to permit a government to do it for us. How can you face and prevent an evil from reoccurring if you don’t understand what seeds it the first place? How can you fight evil if you blindly believe everything you’re told? If we can learn anything from Bavaria it is how important it is to not let the government think for you. I don’t need bureaucrats to tell me what Mein Kampf means and neither do you. I am aware that World War II is a touchy subject in Germany, so perhaps I’m being insensitive. But the proper answer to hateful speech is more speech, not less. Perhaps I’m taking for granted the freedoms we Americans have with our literature. We can choose to read Hitler’s words or we can choose not to. The Bavarian government is not giving its citizens a choice and that makes me sad. An unedited version of Mein Kampf provides a unique glimpse into the mind of one of the most important figures in world history. It deserves to be examined as it was written, not neutered and then swept under the rug.

The point is, you can’t protect yourself and society from evil words and deeds by pretending they don’t exist. You can’t cleanse through commentary the horror of genocide and the evil of complacency. While many Americans willingly bury their heads in the sand, in other places in the world, it is done for you. Remember that next time you want the government to step in and silence a viewpoint you hate. Can you imagine what this country would be like if the government had the power to tell you what to read?

Now if you’ll excuse me, I’m going to go re-read 1984. You should, too


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