Octopus Overlords

The Supreme Court agreed Thursday to decide whether a federal trademark law used against the Washington Redskins is unconstitutional because it limits free speech.

But rather than hear the Redskins' appeal of the Patent and Trademark Office's decision in 2014 cancelling its trademark registrations, the court will consider another case -- one involving a Portland, Ore., rock band called The Slants.

The justices will decide if an appeals court was correct in declaring the federal law unconstitutional under the First Amendment because it allows trademarks considered disparaging to be rejected.

In The Slants' case, the band's effort to register its trademark was rejected because the name disparages Asian Americans. In the Redskins' case, six trademark registrations previously granted were stripped away because they disparage Native Americans. That case is now pending before a federal appeals court in Richmond.

Lawyers for the Redskins had asked the Supreme Court to hear their case instead, leapfrogging over the appeals court, or at least incorporate the two together. The court could announce as early as Monday how it will handle the Redskins case -- most likely by denying a hearing or delaying any action until the other case is decided.
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Lawyers for bandleader Simon Tam argued that in choosing the name The Slants in 2006, he "was following in the long tradition of 'reappropriation,' in which members of minority groups have reclaimed terms that were once directed at them as insults and turned them outward as badges of pride."


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The Redskins' complaint also urges the court to declare the law unconstitutionally vague because its standards are unclear. It notes the trademark office has registered trademarks for Yellowman and Red Man as well as Black Tail, Jap and Moonies.

"The countless offensive marks that the PTO has already registered — many within the last twelve months — suggests that the government’s interest is, at best, vastly overstated," the team says.

The Supreme Court raised doubts Wednesday about a law that bars the government from registering trademarks that are deemed offensive.

The justices heard arguments in a dispute involving an Asian-American band called the Slants that was denied a trademark because the U.S. Patent and Trademark office says the name disparages Asians.

The band says the 70-year-old law violates free speech rights. A federal appeals court ruled that the law is unconstitutional, but the government has appealed.

Justice Elena Kagan said it seemed like "a classic form of viewpoint discrimination" because the government appeared to favor positive names over those with negative connotations.

Justice Ruth Bader Ginsburg said the law wasn't being enforced consistently, noting that the term Heeb was approved in one trademark application, but not in another. The term is considered offensive to Jews.

But the justices also seemed concerned that imposing no limits on trademark names would go too far.

"You want us to say that trademark law is just like a public park" where people can say whatever they want, Justice Anthony Kennedy told John Connell, lawyer for Slants founder Simon Tam.

A victory for the Oregon-based band would be welcome news for the Washington Redskins, embroiled in their own legal fight over the team name. The trademark office canceled the football team's lucrative trademarks in 2014 after finding the word Redskins is disparaging to Native Americans.
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The Obama administration wants the high court to overturn that ruling. Justice Department lawyer Malcolm Stewart told the justices that the law does not restrict speech because the band is still free to use the name even without trademark protection.

Stewart said the government was concerned about allowing trademarks for racial slurs, religious insults and other crude names that distract consumers and hinder commerce.

When Ginsburg asked if the phrase "Slants are superior" would pass muster, Stewart said it probably would.

Chief Justice John Roberts wondered why that wouldn't be considered "disparaging of everyone else."

"I'm concerned that your government program argument is circular," Roberts said.
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Like the Slants, the Redskins say their name is meant to honor American Indians. But the team has spent years fighting legal challenges from Native American groups that say it's a racial slur. A federal judge upheld the trademark office's cancellation of the team's name and the Redskins are appealing. The matter is on hold pending the outcome of the Slants case.

A ruling is expected by the end of June.

El Guapo wrote:It's weird that the Redskins wanted to have their case heard first, since it's the same issue and since the Slants are a far more sympathetic plaintiff.

Jag wrote:

El Guapo wrote:It's weird that the Redskins wanted to have their case heard first, since it's the same issue and since the Slants are a far more sympathetic plaintiff.

Maybe they felt they could do a better job arguing the case. Especially given the financial impact of cancelling their trademark. They have actual damages from it.

If the Slants lose, that could hurt the Redskins case.

Jag wrote:

El Guapo wrote:It's weird that the Redskins wanted to have their case heard first, since it's the same issue and since the Slants are a far more sympathetic plaintiff.

Maybe they felt they could do a better job arguing the case. Especially given the financial impact of cancelling their trademark. They have actual damages from it.

GreenGoo wrote:Amazed that random forum poster claimed-patent lawyer's posts are not 100% legally accurate.

I know this is what you do Kurth, it's just that...your standards for internet forum bickering are impossibly, unreasonably high in this case.

Isgrimnur wrote:Reddit: Company making a wax comb for surfers tries to strong-arm a 3d printing aficionado for his work. Turns out he's a patent lawyer.

pr0ner wrote:Yeah, I'm not into design patents, so I'm not entirely sure what would infringe on someone else's design, but that would definitely be infringement of a utility patent. There's nothing novel or nonobvious about that 3D printed comb.

pr0ner wrote:

Isgrimnur wrote:Reddit: Company making a wax comb for surfers tries to strong-arm a 3d printing aficionado for his work. Turns out he's a patent lawyer.

Also, most of the posts there have been removed. Whomever mods that subreddit seems pretty steamed.

This is a subreddit about surfing, not a place for a bunch of dorks to argue about patent law.
Please fuck off back to /r/all.

Isgrimnur wrote:

pr0ner wrote:

Isgrimnur wrote:Reddit: Company making a wax comb for surfers tries to strong-arm a 3d printing aficionado for his work. Turns out he's a patent lawyer.

Also, most of the posts there have been removed. Whomever mods that subreddit seems pretty steamed.

This is a subreddit about surfing, not a place for a bunch of dorks to argue about patent law.
Please fuck off back to /r/all.

Scoop20906 wrote:Mods: is the anything they can not do?


Sent from my iPhone using Tapatalk

Kurth wrote:

pr0ner wrote:Yeah, I'm not into design patents, so I'm not entirely sure what would infringe on someone else's design, but that would definitely be infringement of a utility patent. There's nothing novel or nonobvious about that 3D printed comb.

Design patents used to be the ugly step child of the patent world. They were what people got if (1) they had no money for a utility patent; or (2) they wanted to claim patent protection but really didn't have anything worthy of a utility patent; or (3) they didn't know what they were doing.

But that's really changed over the past 10 years. Courts (and juries) have been much more willing to hand down verdicts and big money judgments based on design patent infringement. Although it's been attacked on appeal and may not stand up (that's a much more complicated discussion), Apple won a $400M judgment against Samsung not too long ago based largely on Samsung's willful infringement of Apple's design patents on the iphone and ipad (that award was originally over $1B).

Design patents are never going to be as broad in scope or provide as robust protection as a utility patent. Design patents only cover the aesthetic, ornamental features of a product, which is why they don't even have any words (a design patent claim is simply a picture of the design). Because of that, they're really easy to design around with small, aesthetic tweaks that don't impact the functionality of the product. At its most basic, the test for whether or not you've infringed a design patent is whether an ordinary observer (not an expert) would confuse the accused design for the patented design.

Design patents aren't going to do anything to protect new technology. But where they shine is protecting against clear knock-offs. If you develop a product that becomes really trendy, a design patent can prevent competitors making knock-offs from getting too close to your original. If they don't tweak your design enough that an ordinary observer wouldn't recognize that theirs is not yours, they are on thin ice. And sometimes, that can be an extremely valuable tool.

pr0ner wrote:

Kurth wrote:

pr0ner wrote:Yeah, I'm not into design patents, so I'm not entirely sure what would infringe on someone else's design, but that would definitely be infringement of a utility patent. There's nothing novel or nonobvious about that 3D printed comb.

Design patents used to be the ugly step child of the patent world. They were what people got if (1) they had no money for a utility patent; or (2) they wanted to claim patent protection but really didn't have anything worthy of a utility patent; or (3) they didn't know what they were doing.

But that's really changed over the past 10 years. Courts (and juries) have been much more willing to hand down verdicts and big money judgments based on design patent infringement. Although it's been attacked on appeal and may not stand up (that's a much more complicated discussion), Apple won a $400M judgment against Samsung not too long ago based largely on Samsung's willful infringement of Apple's design patents on the iphone and ipad (that award was originally over $1B).

Design patents are never going to be as broad in scope or provide as robust protection as a utility patent. Design patents only cover the aesthetic, ornamental features of a product, which is why they don't even have any words (a design patent claim is simply a picture of the design). Because of that, they're really easy to design around with small, aesthetic tweaks that don't impact the functionality of the product. At its most basic, the test for whether or not you've infringed a design patent is whether an ordinary observer (not an expert) would confuse the accused design for the patented design.

Design patents aren't going to do anything to protect new technology. But where they shine is protecting against clear knock-offs. If you develop a product that becomes really trendy, a design patent can prevent competitors making knock-offs from getting too close to your original. If they don't tweak your design enough that an ordinary observer wouldn't recognize that theirs is not yours, they are on thin ice. And sometimes, that can be an extremely valuable tool.

Thanks for the invo. Being on the utility side of patents, I'm wholly insulated as to design patents, so I really have no idea what's going on there.

Kurth wrote:

pr0ner wrote:

Kurth wrote:

pr0ner wrote:Yeah, I'm not into design patents, so I'm not entirely sure what would infringe on someone else's design, but that would definitely be infringement of a utility patent. There's nothing novel or nonobvious about that 3D printed comb.

Design patents used to be the ugly step child of the patent world. They were what people got if (1) they had no money for a utility patent; or (2) they wanted to claim patent protection but really didn't have anything worthy of a utility patent; or (3) they didn't know what they were doing.

But that's really changed over the past 10 years. Courts (and juries) have been much more willing to hand down verdicts and big money judgments based on design patent infringement. Although it's been attacked on appeal and may not stand up (that's a much more complicated discussion), Apple won a $400M judgment against Samsung not too long ago based largely on Samsung's willful infringement of Apple's design patents on the iphone and ipad (that award was originally over $1B).

Design patents are never going to be as broad in scope or provide as robust protection as a utility patent. Design patents only cover the aesthetic, ornamental features of a product, which is why they don't even have any words (a design patent claim is simply a picture of the design). Because of that, they're really easy to design around with small, aesthetic tweaks that don't impact the functionality of the product. At its most basic, the test for whether or not you've infringed a design patent is whether an ordinary observer (not an expert) would confuse the accused design for the patented design.

Design patents aren't going to do anything to protect new technology. But where they shine is protecting against clear knock-offs. If you develop a product that becomes really trendy, a design patent can prevent competitors making knock-offs from getting too close to your original. If they don't tweak your design enough that an ordinary observer wouldn't recognize that theirs is not yours, they are on thin ice. And sometimes, that can be an extremely valuable tool.

Thanks for the invo. Being on the utility side of patents, I'm wholly insulated as to design patents, so I really have no idea what's going on there.

What do you do on the utility side? Glad to have a fellow IP dork here!

pr0ner wrote:LOL. Did you let Isgrimnur hack into your account, coop?

ImLawBoy wrote:

Scoop20906 wrote:Mods: is the anything they can not do?


Sent from my iPhone using Tapatalk

Sadly, we can't get everyone to turn off their Tapatalk signatures.

Isgrimnur wrote:

pr0ner wrote:

Isgrimnur wrote:Reddit: Company making a wax comb for surfers tries to strong-arm a 3d printing aficionado for his work. Turns out he's a patent lawyer.

Also, most of the posts there have been removed. Whomever mods that subreddit seems pretty steamed.

This is a subreddit about surfing, not a place for a bunch of dorks to argue about patent law.
Please fuck off back to /r/all.

The U.S. Court of Appeals for the Federal Circuit just struck down the final pillar in the U.S. Trademark Act’s censorship regime.

15 U.S.C. § 1052(a) (known best as “Section 2(a)”) is a portion of the Lanham Act, the federal trademark statute, that prevents registration of certain kinds of marks. It used to bar registration of marks that “may disparage,” as well as marks that were “immoral or scandalous.” Earlier this year, the Supreme Court in Matal v. Tam, 137 S. Ct. 1744 (2017) found that the bar on registration of marks that “may disparage” violated the First Amendment. This decision got a lot of attention and caused much speculation as to whether the “immoral or scandalous” language of Section 2(a) would survive, since the two had so much in common.
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We no longer have to speculate as to how the courts might fuck this up — they didn't. Section 2(a)'s unconstitutional provisions have finally fallen, absent an appeal.
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Today, the Federal Circuit in In re: Brunetti, Case No. 2015-1109 (Fed. Cir. Dec. 15, 2017) found that the “immoral or scandalous” restriction on registration is unconstitutional for largely the same reasons the “may disparage” restriction was. The case started with the applicant, Brunetti, attempting to register the mark FUCT. The USPTO found this mark to be synonymous with “fuck,” making it vulgar, and thus running afoul of Section 2(a). The Federal Circuit affirmed that FUCT was immoral or scandalous, but then found that this portion of Section 2(a) was unconstitutional and thus could not prevent registration of the mark.

Isgrimnur wrote: ↑Thu Sep 21, 2017 5:28 pm

Isgrimnur wrote: ↑Tue Dec 19, 2017 12:32 pm Popehat Randazza

The U.S. Court of Appeals for the Federal Circuit just struck down the final pillar in the U.S. Trademark Act’s censorship regime.

15 U.S.C. § 1052(a) (known best as “Section 2(a)”) is a portion of the Lanham Act, the federal trademark statute, that prevents registration of certain kinds of marks. It used to bar registration of marks that “may disparage,” as well as marks that were “immoral or scandalous.” Earlier this year, the Supreme Court in Matal v. Tam, 137 S. Ct. 1744 (2017) found that the bar on registration of marks that “may disparage” violated the First Amendment. This decision got a lot of attention and caused much speculation as to whether the “immoral or scandalous” language of Section 2(a) would survive, since the two had so much in common.
...
We no longer have to speculate as to how the courts might fuck this up — they didn't. Section 2(a)'s unconstitutional provisions have finally fallen, absent an appeal.
...
Today, the Federal Circuit in In re: Brunetti, Case No. 2015-1109 (Fed. Cir. Dec. 15, 2017) found that the “immoral or scandalous” restriction on registration is unconstitutional for largely the same reasons the “may disparage” restriction was. The case started with the applicant, Brunetti, attempting to register the mark FUCT. The USPTO found this mark to be synonymous with “fuck,” making it vulgar, and thus running afoul of Section 2(a). The Federal Circuit affirmed that FUCT was immoral or scandalous, but then found that this portion of Section 2(a) was unconstitutional and thus could not prevent registration of the mark.

Bad news for those of you who currently emit a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough. You need to stop doing that immediately, because that particular smell has just been trademarked by the Hasbro Corporation.

Actually, it’s probably fine if you smell that way because you’ve recently been handling Play-Doh. If you haven’t, you probably need to go see a specialist, like, immediately.

Hasbro announced on Friday that the trademark it claimed for the “iconic” Play-Doh scent had been officially recognized by the U.S. Patent and Trademark Office. That makes it one of only about a dozen scent trademarks that the PTO has recognized to date, including Verizon’s “flowery musk” store scent, the bubble-gum smell of Grendene jelly sandals, and the scent of strawberries with which Lactona toothbrushes are “impregnated.”