It’s not every day you’re presented with the unique opportunity of seeing and hearing the Chief Justice of the United States Supreme Court live in your own backyard, thanks very much Caleb!
Others reporting on this event don’t appear to care about trademarks as much as we do, so this may be the only place you’ll learn about Justice Roberts’ remarks relating to trademarks.
As you can imagine, knowing the vast body of legal subject matter confronted by the Supreme Court, clearly my ears perked up in hearing Justice Roberts utter the word “trademark” five times!
Moderator Robert Stein, former University of Minnesota Law School Dean, asked Chief Justice Roberts whether any highly technical subject matter might be unsuited for the Court to decide.
My mind went to the creation of the CAFC in 1982, specifically designed to hear all federal district court patent appeals, yet the Supreme Court has repeatedly reversed the CAFC since 2005.
Justice Roberts never mentioned the CAFC, instead he waxed a bit about trademark expertise:
“My answer, I think is, no, because usually no matter how complex and involved the legal issue, the case may seem, it implicates a broader legal question about, you know, the statute may be complicated, but the question is going to be, well, how do you go about reading the statute, what sources do you look at in a particular case. We don’t take technical legal cases because we like technical legal cases. They’re usually because they implicate a broader question. When I was practicing law, this is a speech I gave a lot of times, because I was not an expert in any area of the law. I like to think of myself as somebody who was good arguing in a particular court, in the Supreme Court, and so I’d have to, you know, convince someone who comes in with an important trademark case, who could hire the world’s leading expert in trademark law, or me. And, I would tell them, look, the Supreme Court does not think your case is a big deal for trademark law. It thinks your case is a big deal for how regulations relate to the statute, how particular provisions in the statute should be read. So, you need somebody who, you know, can look at it in that broader perspective that the justices do, and you know, I would say, half of the time, they would say, well, I actually want somebody who knows something about trademark law, and that was understandable, but, then it would be, and, you know, they would get there in front of the Court, and they’re too expert in trademark law, and the justices just aren’t that interested in a lot of those nuances, and sometimes they would just be speaking over each other.”
My ears also perked up with Justice Roberts’ remarks about the Court’s fewer decisions:
“We have particular criteria for the cases we want to take. Obviously, if any court finds an Act of Congress unconstitutional, we will take it, we think as a matter of comity to the branches across the street, we should be the ones to say that, if any court is . . . .”
“Whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of ‘immoral’ or ‘scandalous’ marks is facially invalid under the free speech clause of the First Amendment.”
Given the clarity of Justice Roberts’ statement, “if any court finds an Act of Congress unconstitutional, we will take it,” I’ll be amending my prediction otherwise, since the CAFC did just that, in Brunetti.
There are plenty of good reasons for the Court to decide the constitutionality of the “scandalous” and “immoral” language, separate and apart from the disparagement language found to violate the First Amendment in Tam (here, here, here, here, here, and here).
If the Court does hear Brunetti, let’s hope Section 7 of the Lanham Act — the provision expressly noting that federal registrations are issued “in the name of the United States of America” — won’t be some uninteresting and ignored “nuance” of trademark law to the justices.