Prohibit the registration of any mark that may disparage persons and institutions, police or National Symbols. Based on that provision the pto denied response application to register the slants as a Service Marker has been to the pto is willing to not limit responsibility to use the mark in commerce or otherwise to engage in expression or debate on any subject he wishes. Because section 22 a is the experiment provision places a reasonable limit on access to a Government Program rather than a restriction on speech it does not violate the First Amendment. The copyright is Government Program . With a copywriting copyright education is a Government Program but its historically been much more tied to First Amendment values into the incentivized vision of Free Expression. But that part of me seems to ignore the fact that we have a culture in which we have tshirts and logos and rock bands and so forth that are expressing up interview and theyre using the market to express views. Disparagement wouldnt work copyright. Thats a powerful and important Government Program. Let the two or three things work. But their music, they are expressing views on social and political issues and their First Amendment right to do that and theyre able to copyright their songs and get intellectual property protection. That way if congress attempted to prohibit them either from having copyright protection or copyright registration on their music that would pose a much more substantial First Amendment issue. But i was surprised within your brief you cant bring yourself to say that the government could not deny copyright protection to objectionable material. Are you willing to say that ma mark. I hate to give any way that a statute hearing the justification but ill come as close as i possibly can to saying yes, we give that away. It would be unconstitutional to deny copyright protection on the ground. I would also say, even in the context, we would distinguish between limits on copyright protection and restrictions on speech. For instance, its historically been the case and remains the position of the Copyright Office that a person cant copyright new words or short phrases even if the person comes up with something that is original and pithy and that makes a point if its too short, you cant get copyright protection. We certainly defend the constitutionality of that traditional limit on the scope of copyrightable material and if there were a First Amendment challenge brought we would argue that theres a fundamental distinction between saying you cant copyright a forward phrase and saying you cant save the forward phrase for you cant write it in print project significant difference between the copyright regime that you cant choose a Copyright Infringement unless you register. You have to have filed an application to register in order to pursue an infringement suit. So, the statute, i believe it 17 usc 411 a indicates that if you filed an application to register your copyright, even if that application has been denied you can still bring your copyright suit and the register is entitled to be heard on questions of copyright ability. [inaudible] thats correct. You can file a suit under section 1125 a of title 15 under the Trademark Laws either for infringement of an unregistered trademark or for unfair competition more generally. Counsel, im concerned that your Government Program argument is circular. The claim is youre not registering my market because its disparaging and your answer is we want a program that doesnt include disparaging trademarks. Thats why youre excluded. It doesnt seem to me to advance the argument very much well, disparagement provision is only one of a number of restrictions on trademark register ability that can be placed on speech itself. For example, words that marks our descriptive that are generic, marks that are which the application is not the true owner because someone was previously using the mark in commerce and those can be registered either. Each of those and i know there are several are related to the ultimate purpose of the trademark which is to identify the source of the product. So, every trademark make that statement. Now, what purpose or objective of trademark protection does this particular disparagement provision help long or further and im thinking of the provision that says you can Say Something nice about a Minority Group you cant Say Something bad about them. With all the others, i know the others i dont know all but i know many and i can relate to. You relate this. Congress concluded, evidently, the disparaging remarks with hitter commercial development in the following ways. A trademark in and of itself is simply a source of identifier. To tell the public from whom the goods and services and minis. It is not expressive in its own right. It is certainly true that many commercial actors will attempt to devise trademarks that not only identify them as the source but that also are intended to convey positive messages about their products. For example, if you see jiffy lube or ab and be the called. [inaudible] the market is a dualpurpose mitigation. It identifies the source and it serves as a miniature advertisement. There is always the danger, of somers point out, we have a person used as mark words that have other meanings and common discourse and that will distract the consumer from the intended purpose of the trademark which is to identify source. Basically, congress is as long as you are promoting your own products and saying nice things about people we will put up with that level of distraction. Supposed the application he here. No one that a complementary feature that being taken out of it disparagement but. I think that under the ptos practice historical probably not but i think the same thing would be true of other racial epithets or terms that have long been used as slurs for particular Minority Groups. Why is that disparaging of everyone else. I think the basis for the ptos practice and we honestly dont have that piece is that the term plans in and of itself when used in relation to Asian Americans. I want to get the answer to my question. That is the one question i have. The only question i have for you is what purpose related to trademark objective is to serve as mark i want to be sure that i have your answer to your answer so far was it prevents or helps to prevent the user of the products from being distracted from the basic message which is i made this product. I think it thats your answer. If that is your answer, my followup question would be i can think probably and with 50000 examples of instances where the space the trademark provides is used for very distracting messages probably as much or more so than the one in issue or disparagement. What this does congress have picking out this one that letting all the other distractions exist . I think what you described is my first line answer and i think the precise desiccation for different kinds for pivoting registration of the kinds of disparaging trademarks would depend on some extent on who was being spirits. That is your answer was distracting. And one of the great things of 99 of all trademarks is that they dont just identify for you they distract. Its a form of advertisement. If the answer is distracting, and you didnt divide an answer to the patient. Your answer is why disparagement just like we dont want distraction from the message. They dont want distraction. They dont want particular types of distraction. What relation is there to the particular type of distraction, disparagement and any purpose of a trademark. The type of distraction that may be caused by a disparaging trademark will depend significantly on the precise type of disparagement on issue. In the case of racial epithets these words are known to cause harm, to cause controversy and in some sense they may be dissecting a positive message but congress to determine if this is the wrong kind of distraction. Mr. Stewart. A manufacturer who wants to register the trademark who wants to register identify his own product with a sentiment that is antithetical to one of his competitors. Congress to determine the. We would prefer not to encourage that sort of commerce. We prefer that commercial actors would promote their own products rather than disparage others. I was, under the First Amendment we cant prevent that criticism but we can decline to encourage. Assuming governments is not involved in i always thought Government Programs were subject to one extremely important constraint constraint which is picking up make distinctions based on viewpoint. So, why isnt this exactly that . It precludes disparagement and casts a wide net. Thats actually true. It includes management of the macarthur republicans and so forth and so on but it makes a very important distinction which is you can say good things about some person or group but cant say bad things about some person or group rate for example, lets say that i wanted a mark to express the idea that all politicians are corrupt or that just the democrats are corrupt, either way. As a matter. I couldnt get that mark even though i could get a mark saying that all politicians are virtuous or that all democrats are virtuous. You see the point. The point is that i can say good things about something but i cant say bad things about something and i would have thought that was a fairly classic piece of dissemination. As he pointed out libel laws not historically been treated as Community Based on viewpoint even though. That libel is one of our historically different but very distinct categories. You dont make the claim that this falls into a category of low value speech in the way that libel laws and the defamation does were fighting words or Something Like that. Youre not looking to create a new category so in that case it seems that viewpoint based band applies and, as i said, i would be interested to hear your answer of why the example that i stated is not viewpoint based. It says you cant Say Something bad and you Say Something good about the money but not something bad about somebody or something. Certainly if you think about category of people like political officials and said you cant say anything bad about any of them but you can say all the good things you want, that is point space because it would be protected a Discrete Group of people. Let me give a couple of answers. Why is that but if you didnt limit it, if you say you cant say anything bad about anybody anytime that the cake was marked. Again, were not seen the campaigning bad but you can register your trademark is ferreting. No, no, no, even in a Government Program even assuming this is not just the classic speech restriction is still subject to the constraints that you cant discriminate on the basis of viewpoint. And bruce versus barry is not a majority opinion but the court there was confronted with a lot that made it illegal to post signs or engage in express lit activity within 500 feet of a Foreign Embassy that was intended to bring the Foreign Government into content or distribute. The law was struck down as we been too broadly but the plurality held that it was not viewpoint based because it applied to all foreign embassies and it didnt turn on the nature of the criticism. Another example i would give and its a hypothetical example but at least have a strong instinct as to how the case should be decided. Suppose a Public University school set aside a particular room where students can post messages on topics that were of interest or concern to them as a way of promoting debate in a nonconfrontational way and the school said, just a few goggles, no racial epithets and no personal attacks on any other members of the school community. It would seem extraordinary to say that the viewpoint based distinction that cant stand because youre allowed to say complimentary things about your fellow students so the government so the government is a omnipresent schoolteacher . Becnel, again that announcement would apply if the Public School was setting aside a room in its own ability. If the government attempted more broadly to restrict disparaging speech by students or others rather than simply to limit the terms under which the foreign of communication be available that would involve a different thats why plurality in bruce versus barry was found unconstitutional even though it found that the viewpoint. One distinction is the scope of the program and if youre talking about a particular discussion at a Public University thats one thing. If youre talking about the entire Trademark Program that seems to be something else. The trademark registered program and trademarks generally have not historically served as vehicles for expression. The land and act to find trademark and service mark purely by reference to the source identification function. To get back to copyright for a second. I think its noteworthy that everyone would recognize that mr. Pam is not entitled to a copyright on plans but that the Copyright Office doesnt register short phrases, two words is certainly short especially when one of them. Not because of the content or the viewpoint is correct but its a short phrase and any short phrase would be no good. You cant pay plans because the pto thanks its a bad word. It is not in all that everyone knows that the plant is using this term and none at all to disparage but to simply descri describe. The trademark examining attorney went through this and a lot of detail in the trademark examiner acknowledged that mr. Pams sincere intent appeared to be reclaim the words to use it as a symbol of Asian American pride rather than to use as a slur. He also found a lot of evidence in the form of internet commentary to the effect that many Asian Americans, even those who recognize that this was mr. Tams intent still found the use of the word as a band name offensive to the point i was trying to make about copyright is not the copyright protection would be denied on the ground of disparagement. Youre right, it would be time that the short phrase or not even original phrase. The copyright is the branch of intellectual property law that is specifically intended to foster Free Expression on matters of cultural and political among other significant back you deny that trademarks are used for expressive purposes was marked. I dont deny that their use for expressive purposes. As i said earlier, i think many commercial actors will a mark that will not only serve as a source identifier but that will pass their products in an effective light and support that will communicate a message on some other topic. My only point is in deciding whether a particular treatment to be registered, congress is entitled to focus exclusively on the source identification aspect. I wonder if you are not stretching the concept of a Government Program past the breaking point. The government provides lots of services to the general public and i dont thank you would say that those fall within the Government Program line of cases that youre talking about. Like providing Police Protection to the general public, providing Fire Protection to the general public does cost money and theres a Government Programs and the government says well will provide protection for some groups but not for others. Know those would raise serious depending on the nature of the distinction equal protection problems, potential. Potential First Amendment problems to the nature of this was based on the persons speech is that right . Clearly, it was based on the point and i was a. Absolutely clearly is based on the point. I dont want to interrupt your answer to justice but i want to get back because i dont understand the answer that you gave me before you said a government regulation that distinguish between sane politicians are good and virtuous and politicians are corrupt would clearly be viewpoint based. The right . And similarly, if you set the flag is a wonderful emblem and this applies to National Symbols you could say that the flag is a wonderful emblem but you cant say that the flag is a terrible emblem. That would be viewpoint based thats what this regulation do does. It says that you can say one of those things but you can see the other. That trademark. Is sleeps with a broad brush. I think the reason that viewpoint discrimination has historically been the most disfavored type of regulation from a First Amendment perspective is that it creates the danger that the government is attempting to suppress disfavored messages. Theres a tab in an appeal board and from 99 that declined to register a proposed trademark that was essentially the soviet hammer and sickle with a flash through it and registration was denied on the ground that it disparage the National Symbol of the soviet union. Obvious, hostility toward the soviet union was not interested with United States policy in 199 and no one would have perceived the denial of trademark registration as an attempt to suppress the disfavored viewpoint in the point of the my defense of the statute is it sweeps with such a broad brush. Cathol