Judge Dyk concurs in the result today only because he believes the content of Mr. Tam’s mark is so “indisputably expressive” that it cannot be regulated under the lesser standards applied to commercial speech. Dyk, J., concurring at *20-21. But if the expressive content of the mark precludes regulation, on what authority may the government grant Mr. Tam the exclusive right to use this mark in commerce? Whatever standard of scrutiny protects the content of Mr. Tam’s trademark from government regulation, that same standard must necessarily be overcome by the government’s substantial interest in the orderly flow of commerce, or no trademark could issue.To look at it from the flipside, there's a mismatch between the rationale for protecting commercial speech--it provides useful information!--and the rationale for giving registrants complete freedom to choose non-inherently informational symbols to which they attach meaning.
Tuesday, December 22, 2015
one note on In re Tam: TM as right to suppress others' speech
Judge Reyna's dissent makes a point that I think courts will find very hard to grapple with, whatever the fate of 2(a) or disparagement specifically:
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Judge Reyna fails to distinguish between Constitutional grants of authority to government [Commerce Clause] and Constitutional restrictions on government [First Amendment]. So … “on what authority may the government grant Mr. Tam the exclusive right to use this mark in commerce?” The Commerce Clause. And what prevents the government from denying trademark registration to even disparaging “non-inherently informational symbols” [that is, expressive trademarks]? The First Amendment. In short, Congress has the authority to confer benefits [here, to those engaged in commercial speech] but must do so consistent with an even-handed First Amendment. I don’t see the “mismatch.”
That leaves out the other affected people: other people who might want to use "SLANTS" either disparagingly or in a reclaiming fashion. Tam's exclusive right can interfere with their rights to do what he's doing, and if he has a First Amendment right to do it, why don't they? There are answers, but I think Judge Reyna is correct that those answers are in fundamental tension with the majority's reasoning.
Everyone may still use "SLANTS" in their expressive speech - just not [under the Commerce Clause] as a trademark to brand their provision of entertainment services. That's why they don't have "a First Amendment right to do it" -- but only if by "it" you mean the trademark use of the word. If by "it" you mean non-trademark use, then they most certainly can use that word as a tool of expression. I still see no conflict between the Commerce Clause restriction on First Amendment use of the word.
But let's change your first sentence: "Everyone [including Tam] may still use "SLANTS" in their expressive speech - just not [under the Lanham Act] as a trademark to brand their provision of entertainment services." If "everyone is free to use the term expressively" is enough to satisfy the First Amendment, it's enough to satisfy the First Amendment for everyone, including Tam.
Sure. Everyone has a First Amendment right to use the word "SLANTS" in public -- just not in violation of Tam's limited, Commerce Clause-based Lanham Act rights.
Engaging in conduct that falls within the protection of the First Amendment -- specifically, publicly using expressive language that the First Amendment protects -- is but step one toward being granted through the Lanham Act the exclusive, limited right to use that expression in commerce.
The next step is to be the first to actually use the expression to brand particular products or services.
THEN, the Commerce Clause-based Lanham Act provides the government with the authority to confer to that user the exclusive, limited right to use that expression in commerce [here, as a tool to brand Tam's entertainment services].
Everyone retains their First Amendment right to publicly use the word -- but the government's Commerce Clause authority allows it to abridge some particular uses of the word to protect Tam's commercial interests and the public from confusion in their purchasing decisions.
This very same dynamic underlies every trademark registration. Every one is an abridgment of someone else's First Amendment right to use the expression that's registered.
Even if every word you say is correct, it does not explain why there is any affirmative First Amendment interest in getting a trademark registration. The government may well have authority to grant it under the Commerce Clause. But that does not translate to a First Amendment right to use a term as a mark or to have a registration, and as you've already made clear, everyone possesses the right to use that term expressively, which (according to your statement) fully satisfies everyone else's First Amendment interests. Why not Tam's?
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