[00:00:00] Speaker 01: The first is number 20-2205 in Ray Elster, Mr. Taylor. [00:00:16] Speaker 04: Good morning, Your Honor, and may it please the Court, Jonathan Taylor for the Appellant, Steve Elster. [00:00:22] Speaker 04: In this case, a U.S. [00:00:24] Speaker 04: Patent Trade Office refused to register a trademark criticizing a former president. [00:00:31] Speaker 04: It did so for a single reason, because the mark identifies the person it criticizes by name, [00:00:39] Speaker 04: And Section 2C of the Lanham Act categorically forbids registering any mark that contains a name identifying a particular living individual without first obtaining their permission. [00:00:54] Speaker 04: That statutory prohibition, as applied to the speech in this case, violates the First Amendment. [00:01:00] Speaker 04: The government attempts to justify its regulation of speech as necessary to protect privacy and publicity rights and to prevent consumer deception and confusion. [00:01:14] Speaker 04: But the fundamental problem for the government is that Section 2C is an extraordinarily poor fit to achieve those objectives. [00:01:26] Speaker 04: As to privacy, the PTO interprets the statute to cover only celebrities and world-famous political figures. [00:01:34] Speaker 04: And the statute bestows special protection on the president alone. [00:01:38] Speaker 02: Can you just clarify, where does the PTO limit this to famous people, as opposed to any Joe Schmo who proves that this particular reference of a name would be understood as identifying him? [00:01:55] Speaker 04: So the PTO in its manual specifies... Is that binding? [00:02:02] Speaker 02: No, but I think that's the way that the PTO... Like on the path side, manuals are not binding, right? [00:02:06] Speaker 02: That's right, but... Is that the same on the TT? [00:02:09] Speaker 04: I believe that's right, but we're looking to the way in which the PTO has enforced the statute in the real world. [00:02:15] Speaker 04: And I think what the PTO is trying to do is give some force to the statutory language of identifying a particular living individual. [00:02:22] Speaker 04: And if it's Joe Smoe or if it's Joe Smith in the public, it doesn't bring to mind any particular person in the public's mind that that's not going to qualify. [00:02:32] Speaker 04: I think we can all agree that former President Trump is a particular individual under the statute, and therefore the statutory prohibition applies. [00:02:42] Speaker 04: And so I don't think there's a narrowing way to construe the statute here. [00:02:46] Speaker 04: I think the court just has to decide whether, as applied to the particular mark in this case, it violates the First Amendment. [00:02:52] Speaker 02: And I assume you sensibly enough, I think, want to essentially view [00:02:58] Speaker 02: 2C for evaluation purposes by kind of subtracting out what's already covered in 2A because 2C must perform some additional function so you want to focus on the increment function and that's either privacy or publicity and privacy seems minimal because almost nobody with a real privacy interest is going to meet the condition. [00:03:21] Speaker 02: So it really comes down to this right to publicity. [00:03:24] Speaker 04: I think that's right. [00:03:25] Speaker 04: And that's the way I understand the government's briefs as well. [00:03:28] Speaker 04: And I guess the way I would think about it is we're looking at the practical effect of the statute. [00:03:32] Speaker 04: And so if the government says, look, we're concerned primarily about preventing consumer deception or confusion, those concerns are already separately addressed. [00:03:42] Speaker 04: by the more narrow prohibition that exists in 2A. [00:03:46] Speaker 01: Well, that's not quite true. [00:03:48] Speaker 01: I mean, there are situations not covered by 2A where there's a legitimate interest in protecting the right of publicity. [00:03:58] Speaker 01: For example, the advertisement for a sandwich that says, Tom Brady doesn't eat our sandwiches, but you should. [00:04:09] Speaker 04: I think that's right. [00:04:10] Speaker 04: I guess the way I would think about it is there are three categories of legitimate government interests, I think, when you're talking about the right of publicity. [00:04:17] Speaker 04: One is the false endorsement. [00:04:20] Speaker 04: You know, Tom Brady loves our product. [00:04:21] Speaker 04: If that's not true, then that's false commercial speech and that can be properly prescribed. [00:04:27] Speaker 04: The other is, or the second would be, any mark that gives rise to consumer deception or confusion as to the source of the product. [00:04:35] Speaker 04: So if you're suggesting that the source is somebody else, that too can be properly prescribed. [00:04:41] Speaker 04: But what you're identifying, Judge Dyck, is the third category, which I think could be, in some context, a legitimate government interest, which is there's no real First Amendment value behind the speech. [00:04:52] Speaker 04: You're merely trying to exploit [00:04:53] Speaker 04: the celebrity of somebody else to attract consumer attention and make a buck. [00:04:59] Speaker 04: And I think you could imagine potentially a more narrowly drafted statute that just tries to get at that. [00:05:04] Speaker 04: And I think the problem for the government is this statute is just dramatically over-broad to achieve that objective, even if it were a legitimate objective. [00:05:12] Speaker 01: And I think it's... So are you challenging the statute on its face or just as applied? [00:05:17] Speaker 04: We're just challenging it as applied. [00:05:20] Speaker 01: I'm not sure that's right under Brunetti and Justice Kagan's opinion there. [00:05:27] Speaker 01: She seems to suggest that the statute has to fall and has to be redrafted by Congress rather than essentially redrafted by the judiciary. [00:05:40] Speaker 04: I think that that's right, although I could imagine an argument that when you're dealing with a law that is motivated by viewpoint discrimination, it's this kind of root and branch illegitimate. [00:05:52] Speaker 04: And you have to invalidate the statute on its face. [00:05:54] Speaker 04: And if the government wants to come back, as in the case of Brunetti, and just target vulgar words or obscenity, it has the burden of coming up with a more narrowly tailored statute to achieve that objective. [00:06:06] Speaker 04: And so I could imagine making an argument the government might have on the other side, which is this statute, it could be constitutionally applied to certain speech. [00:06:16] Speaker 04: I think we're far beyond that, Judge Dyke, as you recognize in your separate opinion and, Tam, when you're talking about a mark. [00:06:21] Speaker 04: that expresses a core political opinion, that cannot be properly prescribed by the federal government, consistent with the First Amendment, because even though it's used in the commercial sphere, it's still entitled to some protection, and the government will interest in... Just so I understand, under your theory, what would be a proper application of 2C? [00:06:43] Speaker 04: Well, I think it could be properly applied if there's a false endorsement. [00:06:47] Speaker 04: We don't have that here. [00:06:48] Speaker 04: I think it could be properly applied if this. [00:06:50] Speaker 05: Wouldn't that be 2A? [00:06:51] Speaker 04: Well, it would just be redundant to 2A in that respect. [00:06:54] Speaker 04: If you're asking what additional work 2C could do that 2A might not do that could be constitutionally permissible, I think it might be the Tom Brady example. [00:07:05] Speaker 04: If you're just saying Tom Brady hasn't tried our product, but you should, it's really hard to understand the expressive value [00:07:12] Speaker 04: that the mark holder would have in invoking the name of the celebrity beyond just merely trying to capture the consumer's attention. [00:07:21] Speaker 04: And you see this come up a little bit. [00:07:23] Speaker 05: I guess I'm just trying to understand, under your theory, why wouldn't we strike down 2C as just overly broad? [00:07:29] Speaker 04: I mean, I think you could. [00:07:30] Speaker 04: We're not asking for that remedy. [00:07:31] Speaker 04: I think it could be, as a practical matter, if the statute fails central Hudson and it's just dramatically overbroad to achieve the objectives, even if you assume they're legitimate governmental objectives. [00:07:41] Speaker 04: And I think it falls to the government at that point, if Congress wants to ensure that you don't have this gap. [00:07:46] Speaker 04: And it really wants to prohibit the federal registration of marks that could, in some contexts, give rise to viable right of publicity claims. [00:07:54] Speaker 04: then I think Congress would have to go back to the drawing board and draft a more narrowly tailored statute. [00:07:59] Speaker 04: And that's not, you know, you see that all the time. [00:08:02] Speaker 04: I do think this particular statute is just dramatically overbroad given the objectives. [00:08:09] Speaker 04: And so I think... Can I ask you this? [00:08:11] Speaker 02: So in both TAM and Brunetti, there was an [00:08:20] Speaker 02: sort of on the face of the statute, a reflection of a government, I'm just going to call it an impermissible motive, by saying we want to shrink in the world the amount of speech that we disfavor. [00:08:39] Speaker 02: Whatever else is going on here, it's so hard to see this as that, and you haven't argued. [00:08:46] Speaker 02: So you're really talking about the adverse effects on valuable speech and the lack of a justification for imposing those effects. [00:08:57] Speaker 02: And so that leads me to this question. [00:09:00] Speaker 02: When, suppose Mr. Elster gets this registration, and suppose it's not just for this particular three-word combination, but a variety of [00:09:09] Speaker 02: negative about Trump expressions. [00:09:17] Speaker 02: Doesn't that limit other people's ability to use those very valuable First Amendment expressions on their own, on t-shirts that they might want to make? [00:09:31] Speaker 04: I think so. [00:09:32] Speaker 04: So a couple of responses to that. [00:09:34] Speaker 04: The first response is, I would just note as a predicate that the registration of a trademark doesn't give rise to any distinct trademark rights. [00:09:43] Speaker 04: It's the use of the trademark service. [00:09:44] Speaker 02: But the whole reason we're here is that registration gives something of value. [00:09:50] Speaker 04: Right. [00:09:51] Speaker 04: And so... And what it gives, I'm sorry, is something of value against other speakers. [00:09:55] Speaker 04: That's right. [00:09:56] Speaker 04: That's right. [00:09:56] Speaker 04: But two points then on that. [00:09:58] Speaker 04: One is that I think that might be an argument for why Central Hudson could be the right kind of framework because it takes account of the potential speech interests on the other side. [00:10:09] Speaker 04: But I would also note that if what someone would [00:10:12] Speaker 04: want to do with their speech is infringe my client's trademark and use the same mark as a source identifier of its own in a way that could give rise to confusion or deception. [00:10:25] Speaker 04: They wouldn't have a First Amendment right to do that. [00:10:28] Speaker 04: And so I actually think the First Amendment interests here are pretty one-sided. [00:10:31] Speaker 04: But again, I think that Central Hudson at least allows you to take account of that potential speech suppressor. [00:10:36] Speaker 02: I'm sorry. [00:10:37] Speaker 02: Why would they not have a First Amendment interest in that? [00:10:39] Speaker 04: Well, if your client does, if they want to use the exact same mark as their product or source identifier, then that could give rise to concerns about consumer confusion or deception, because the consumer might not know who's the source of the particular product if it's the exact same mark in the same market. [00:10:57] Speaker 01: I'm having trouble finding it, because I have the same concerns that Judge Toronto has, it seems to me, [00:11:04] Speaker 01: that if you allow the registration of essentially political slogans, positive or critical, that you are interfering with the First Amendment rights of other people to use those slogans. [00:11:18] Speaker 01: For example, to put out t-shirts or whatever. [00:11:20] Speaker 01: How does the Patent Office or Patent and Trademark Office deal with that kind of situation? [00:11:30] Speaker 01: It does seem to me that [00:11:33] Speaker 01: allowing that kind of registration could interfere with the First Amendment rights of other persons who want to produce t-shirts using those slogans. [00:11:43] Speaker 04: That's right, and that's, you know, but I think you could say the same about any market that gets registered, and the patent... Well, no, no, no. [00:11:49] Speaker 01: It's not about any markets. [00:11:51] Speaker 01: It's about those that involve core political speech and, you know, speech in the public sphere. [00:11:59] Speaker 01: If you're, if you're [00:12:01] Speaker 01: client is allowed to get a trademark on Trump Too Small on t-shirts is preventing other people from doing that too. [00:12:11] Speaker 01: Now the answer to that may be that that's not an issue in this case. [00:12:15] Speaker 01: It's not something that's remedied by 2C, but it is a concern, isn't it? [00:12:20] Speaker 04: And I suppose you could have made the same argument in the Tam case. [00:12:25] Speaker 02: I'm sorry, but that's why I started my question by saying [00:12:29] Speaker 02: Bernetti and Tam are about something suspect about the government motivation and therefore is not just about effects on the real world speech market. [00:12:41] Speaker 02: Your case I think is really about just the effects on the real world speech market which would seem to suggest some inquiry at least in maybe not this case but in the abstract into the balance of those effects. [00:12:54] Speaker 04: And again, we would submit that Central Hudson provides the government some leeway to take account of the potential speech interests on the other side. [00:13:01] Speaker 04: The government has not asserted a speech interest here. [00:13:04] Speaker 04: That is not, I mean, it's the government's burden under Central Hudson to identify. [00:13:07] Speaker 01: You can make an argument that's not what's involved here, and 2C doesn't solve that problem, because it allows teachers that are approved by Trump to be trademarked, but those that aren't approved by Trump not to be. [00:13:23] Speaker 01: There's an area of concern here maybe that's the subject of some other case. [00:13:30] Speaker 04: And if the government's interest here in administering this system and Congress's interest in passing the statute were to ensure that political speech couldn't be, you know, trademarked, well then it has fallen woefully short because there are all kinds of political slogans, make America great again, yes we can, they can get properly trademarked. [00:13:47] Speaker 04: And that has the effect of preventing somebody else from using that same speech on their goods. [00:13:53] Speaker 04: So I just don't think it would be the kind of government interest that could certainly justify the kind of expansive speech regulation that we have here. [00:14:02] Speaker 04: And the government's only real response, and I should probably take a seat in just a second, is to resist the application of any kind of scrutiny and argue, sort of peddle the same arguments that it made a couple of times. [00:14:16] Speaker 02: I'm sorry. [00:14:17] Speaker 02: I'm having trouble hearing. [00:14:18] Speaker 01: Hold on just one second. [00:14:20] Speaker 01: Could the courtroom deputy maybe turn up the volume a bit, because it's a little hard to hear. [00:14:28] Speaker 02: Thank you. [00:14:29] Speaker 04: I think I was just going to make the point that I think it's precisely because this statute is so poorly tailored and can't satisfy even more moderate scrutiny that the government tries to resurrect the same arguments that it made twice to this court and were rejected both times and that no majority of the Supreme Court has endorsed. [00:14:47] Speaker 02: Well, it didn't need to. [00:14:48] Speaker 02: This may be the first case in which the very strong viewpoint discrimination basis is missing and therefore one has to look at dicier, not dicier, but more complicated pieces of First Amendment talk. [00:15:04] Speaker 04: I think that's right, but I do think that under this court's precedence, in particular Brunetti, there is a minimalist and straightforward way of resolving this case. [00:15:13] Speaker 04: Applying this court's precedence, the court should simply hold that Section 2C imposes a content-based burden on private speech and must therefore satisfy First Amendment scrutiny, and that it cannot survive even intermediate scrutiny, and that it may not be applied, therefore, [00:15:29] Speaker 04: to bar registration of the particular proposed mark in this case. [00:15:33] Speaker 02: Can I ask you, in your reply brief, I think, toward the end, when you clear out a lot of underbrushing, you get to what sounds actually like the heart of this, is how strong is this government justification in terms of protecting [00:15:51] Speaker 02: the right of publicity, and you make an assertion that, I think you do it in quite bold terms, that nowhere would the right of publicity be held to protect this kind of thing. [00:16:04] Speaker 02: And I think you cite the McCarthy section in three cases. [00:16:08] Speaker 02: And the McCarthy section is not actually about what the right of publicity does. [00:16:11] Speaker 02: It's sort of the introductory policy. [00:16:14] Speaker 02: Here are some things to think about. [00:16:15] Speaker 02: One of the cases is pure First Amendment and I think the other two involve I think actually Ohio law and quite indirectly Oregon law as I recall. [00:16:26] Speaker 02: That doesn't seem like massive support for the proposition that the right of publicity everywhere would recognize that this kind of thing of course would be protected. [00:16:38] Speaker 04: Well, I don't think the government's argument to be, and my friend can get up and clarify the government's position on this, to be that if that President Trump would be able to block distribution of Mr. Elster's t-shirt and that he would lose that case. [00:16:52] Speaker 04: Either as a matter of California law, he lives in California. [00:16:55] Speaker 04: California has a pretty protective regime for when it comes to... Has a pretty what? [00:16:58] Speaker 04: But it has a pretty protective regime for obvious reasons when it comes to publicity rights, given the tremendous percentage of celebrities. [00:17:06] Speaker 02: Has the California statute been updated since, for example, I recently read Professor Volokh's article, which is now, what, 18 years old or something. [00:17:16] Speaker 02: And he notes that the California view of right of publicity is actually rather broader than, for example, the restatement something of unfair competition. [00:17:26] Speaker 02: Well, it's... Because it's limited to California industries, let's call them. [00:17:33] Speaker 04: Right. [00:17:34] Speaker 04: Well, I think that the California write-up publicity statute, which on its face could be read to apply here, does then go on to carve out the use of a person's name or likeness in connection with any news, public affairs, or sports broadcast, or account, or any political campaign. [00:17:52] Speaker 04: But even if that's not t-shirts. [00:17:54] Speaker 04: Well, even if it wouldn't be read to cover, even if that particular statutory text wouldn't be read to cover t-shirts, then the California Supreme Court itself has held that there would be a First Amendment right here. [00:18:04] Speaker 04: Because what you have here is there's some additional expressive message. [00:18:09] Speaker 02: I guess what I wanted to get clear about is it seems to me one thing you could say, and indeed did say, that as a matter of state law, [00:18:16] Speaker 02: state law of right of felicity wouldn't cover this. [00:18:19] Speaker 02: And that's one thing. [00:18:19] Speaker 02: Another is to say that to the extent any state right of felicity covered it, that would be just as unconstitutional as this. [00:18:28] Speaker 04: Right. [00:18:28] Speaker 04: I think that's right. [00:18:29] Speaker 04: I guess a couple of- Well, it would have to be. [00:18:32] Speaker 01: Your position would have to be that a state law creating a tort liability for this would be clearly unconstitutional. [00:18:39] Speaker 01: I mean, it may be that there [00:18:40] Speaker 01: there's a paucity of authority about the right of publicity but there are places that are very close to that time in ink against hill and martinicky which isn't cited in the briefs but as a supreme court case both dealing with the right of privacy and saying no you don't have a right of privacy under these circumstances with matters of public concern even if it's not about [00:19:05] Speaker 01: Right, right. [00:19:06] Speaker 04: And I think we can all agree, and the government too, that if the government, federal or state, passed a law requiring the consent of any celebrity or politician before their name or likeness could be used in any commercial product, that that statute would violate the First Amendment. [00:19:22] Speaker 04: Otherwise, the only book or t-shirt that you could buy in the marketplace expressing a message about the president would be one that the president himself endorsed. [00:19:29] Speaker 04: And that's antithetical to the very idea of free speech. [00:19:33] Speaker 04: And so I think the government, to the extent that it's articulating an interest in just not facilitating the use of a mark that could even possibly violate state law, and so then they're just going to restrict the entire category, I just don't think that's a valid defense for the entire categorical prohibition for three reasons. [00:19:54] Speaker 04: One is that the government has no legitimate interest. [00:19:58] Speaker 04: in aiding an unconstitutional state law. [00:20:02] Speaker 04: The second reason is that prophylactic restrictions, as the Supreme Court held in Zauderer, are not permissible. [00:20:10] Speaker 04: Otherwise, you could prescribe all advertising [00:20:15] Speaker 04: merely because you're concerned that there'll be some false advertising so you just prohibit the entire category. [00:20:21] Speaker 04: That's too broad, as the Supreme Court has said. [00:20:23] Speaker 04: We would submit the same kind of approach would apply here. [00:20:26] Speaker 04: And I think particularly in this context, as you've noted, Judge Dyke, [00:20:30] Speaker 04: The pleas for administrative convenience are especially unpersuasive because the trademark manual is hundreds, maybe even thousands of pages. [00:20:40] Speaker 04: These are incredibly context-specific judgments that need to be made by PTO examiners. [00:20:46] Speaker 04: And so I don't think it's too much to ask that these examiners would also then have to take account of the First Amendment interests on the other side. [00:20:54] Speaker 01: I'm not sure that giving, delegating the First Amendment authority to the patent examiners is the best way to do it. [00:21:02] Speaker 01: But unless there are other questions, we'll hear from the government. [00:21:07] Speaker 01: Thank you, Your Honor. [00:21:08] Speaker 01: Thank you. [00:21:08] Speaker 01: Mr. Sullivan. [00:21:15] Speaker 03: Thank you, Your Honor, and may it please support. [00:21:16] Speaker 01: You can take your mask off if you'd like. [00:21:18] Speaker 03: I would prefer to keep it on if the panel can hear me. [00:21:20] Speaker 03: I'll do my best to enunciate. [00:21:23] Speaker 03: Thank you, Your Honor. [00:21:24] Speaker 03: I'd like to begin by emphasizing two points at the beginning. [00:21:28] Speaker 01: Isn't this really just another form of viewpoint discrimination in the sense that what it's saying, for example, in the case of Trump, is that messages will be allowed that he approves [00:21:43] Speaker 01: and messages will be disallowed that he disapproves. [00:21:46] Speaker 01: He's sort of delegating a form of censorship to the person who's identified. [00:21:55] Speaker 03: Absolutely not, Your Honor. [00:21:56] Speaker 03: And I don't even take my friend to be arguing that this is viewpoint discriminatory, and with good reason, because fundamentally, [00:22:04] Speaker 03: This is an intellectual property protection. [00:22:06] Speaker 03: And therefore, it is not a question of the viewpoint expressed. [00:22:10] Speaker 03: As we compile in our brief, there are numerous examples of PTO rejecting pro-Trump marks. [00:22:16] Speaker 03: This rather tracks the normal rule that if somebody has a copyright, somebody has a trademark, somebody has an intellectual property interest, the person holds that interest. [00:22:26] Speaker 01: The PTA rejected pro-Trump marks. [00:22:28] Speaker 01: But we're talking about under 2C here. [00:22:33] Speaker 01: The test seems to be entirely whether the public figure covered by this approves the message or disapproves the message. [00:22:44] Speaker 01: I mean, it's delegated to that individual to determine whether the morgue may be registered or not registered, doesn't it? [00:22:53] Speaker 03: Well, that tracks how the right to publicity generally functions, and that's consonant with how other intellectual property rights function. [00:23:01] Speaker 03: If I have a copyright in some speech, I control whether or not that can be publicly performed or not. [00:23:08] Speaker 03: That is my right, but it's not because the government is engaging in viewpoint discrimination, but rather because the underlying right belongs to the person who has the intellectual property interest. [00:23:19] Speaker 01: Similarly, most states recognize- You can't seriously contend that a state law making it a tort to criticize a public figure without his or her permission would be consistent with the First Amendment. [00:23:35] Speaker 03: Of course not, Your Honor, and that's not what I'm saying. [00:23:37] Speaker 03: I want to be very clear about what the scope of the right to publicity is. [00:23:41] Speaker 03: And I particularly refer, Your Honors, to section 47 of the statement on unfair competition. [00:23:47] Speaker 03: And what it says is it doesn't cover every mention of a person. [00:23:51] Speaker 03: Rather, it's restricted to use of somebody's identity or persona in trade. [00:23:57] Speaker 03: And then it goes on to say that specifically, as a canonical example of what an impermissible use would be, [00:24:04] Speaker 03: is incorporating somebody's name or persona into a trademark without authorization. [00:24:10] Speaker 01: So we're not asking... Okay, my following statement also recognizes there's a First Amendment interest here and that the right of publicity is constrained by that. [00:24:18] Speaker 01: And it just doesn't seem to me that talking about a right of publicity interest makes a lot of sense where you're talking about the ability of someone to criticize a public figure. [00:24:29] Speaker 03: Well, two answers to that. [00:24:31] Speaker 03: One, again, I think it's quite notable that we're not talking about a general prohibition. [00:24:36] Speaker 03: We're just talking about in the context for use in trade, and particularly in the context here of a federal trademark registration program that leaves Mr. Elster free to put whatever message he wants to on his t-shirt. [00:24:50] Speaker 01: It has to do with the fact that it's on a t-shirt rather than being spoken out loud. [00:24:58] Speaker 03: No, it's the fact that it's a trademark. [00:25:01] Speaker 03: As I said, the federal government has no interest in what he puts on his t-shirt. [00:25:06] Speaker 03: That will ultimately be a question of California law or Florida law or whatever state law may do, and I think there was a colloquy with Judge Toronto about this. [00:25:13] Speaker 03: But in terms of Ception 2C, all you need to consider is whether or not the federal government can withhold the benefits of federal trademark registration from a trademark, something that is supposed to identify the source of goods in trade that misappropriates somebody's identity without their consent. [00:25:31] Speaker 01: The other thing- It seems to be a little late to make that kind of argument after Tam and Brunetti and the Supreme Court [00:25:38] Speaker 01: indicating that there are First Amendment considerations in the trademark area. [00:25:45] Speaker 01: And, you know, I just, I don't understand what the government's theory is since state law couldn't recognize a right of publicity that would create tort liability for this kind of criticism of President Trump. [00:26:02] Speaker 03: So there are three things I'd like to say about that. [00:26:05] Speaker 03: First of all, I think our position here is entirely consonant with Tam and Bernetti, because this is very, very different. [00:26:12] Speaker 03: Tam and Bernetti involved, as Judge Toronto recognized earlier, provisions that on their face targeted expressive conduct. [00:26:21] Speaker 03: This court said in both Tam and Bernetti, [00:26:23] Speaker 03: Every time the government applied the immoral and scandalous provision or the disparaging provision, it did so because it recognized that there was expression that the government disapproved of. [00:26:35] Speaker 03: Here, by contrast, we're targeting a commercial act, the misappropriation of identity. [00:26:40] Speaker 03: Second, this case is different insofar as [00:26:46] Speaker 03: The second point I wanted to make is we're not trying to refight Tam and Bernetti. [00:26:54] Speaker 03: We're just saying you shouldn't extend them to a new context. [00:26:57] Speaker 03: But even if you do, even if you think we're stuck with Central Hudson, that's fine. [00:27:01] Speaker 03: Because we absolutely think that this readily passes muster under Central Hudson. [00:27:07] Speaker 03: And the third and related point I'd like to make with regards to Central Hudson is I want to emphasize to the court or commend to the court the Supreme Court's 1993 decision in the Edge Broadcasting case. [00:27:20] Speaker 03: Because what it says is that in the commercial speech context, and this is from page 430 of that decision, you don't look to the specific application. [00:27:29] Speaker 03: A lot of their argument is it's unconstitutional as applied here. [00:27:34] Speaker 03: But what edge broadcasting tells you is when it's commercial speech, [00:27:37] Speaker 03: You look at the general governmental interest. [00:27:40] Speaker 03: You don't look at the specific application and how much the interest is served there. [00:27:45] Speaker 03: So this is a program designed to facilitate the use of proper source identifiers in commerce. [00:27:50] Speaker 03: This provision, very much unlike the provisions in Tam and Brunetti, [00:27:55] Speaker 03: is targeted to the source identifying function. [00:27:58] Speaker 03: It is not motivated by a desire to control expression. [00:28:02] Speaker 03: And it is certainly not motivated by a desire to leverage the trademark program in order to affect speech in the world at large. [00:28:11] Speaker 01: And it has the effect of allowing President Trump to say, no, you can't have messages on t-shirts that I don't like. [00:28:20] Speaker 03: Well, not really, Your Honor. [00:28:21] Speaker 03: Not really? [00:28:22] Speaker 03: Really? [00:28:23] Speaker 03: So I suppose, in practice, that can happen in some applications. [00:28:28] Speaker 03: But as our brief shows, I think, PTO consistently rejects marks that refer to Trump without his consent. [00:28:36] Speaker 03: And that's going to span the gamut of the range of viewpoints. [00:28:40] Speaker 03: About under 2C, right? [00:28:42] Speaker 03: So 2C allows a very limited- Answer the question. [00:28:45] Speaker 01: The cases you're talking about are not under 2C. [00:28:49] Speaker 03: No, those were two C rejections, absolutely. [00:28:51] Speaker 03: In all grave, I'm afraid I don't have the page light handy. [00:28:54] Speaker 01: Two C rejections in which Trump had approved the trademark? [00:29:01] Speaker 03: One more time, Your Honor, I'm sorry? [00:29:03] Speaker 01: Two C rejections in which Trump has approved the trademark? [00:29:07] Speaker 03: Oh, no, not when Trump has approved the trademark, but when the applicant, the mark sought to be registered is pro-Trump. [00:29:14] Speaker 03: Trump is the god. [00:29:15] Speaker 01: Sure, but it's all up to Trump. [00:29:18] Speaker 01: It's all up to Trump. [00:29:19] Speaker 01: You can do it if I like the mark. [00:29:21] Speaker 01: You can't do it if I don't like the mark. [00:29:24] Speaker 03: Well, in practice, I think everybody who tries, except Trump himself and the narrow universe of people who may be able to get his authorization, are going to be rejected, regardless of the viewpoint of the mark. [00:29:37] Speaker 03: The governmental interest here is not about protecting Trump. [00:29:40] Speaker 03: It's not about controlling speech. [00:29:42] Speaker 01: It's not about protecting Trump? [00:29:44] Speaker 01: I mean, that's exactly what it's done. [00:29:47] Speaker 01: Supposedly, you're protecting his right to publicity. [00:29:50] Speaker 03: Well, I should have phrased that a little differently. [00:29:53] Speaker 03: It's about respecting Trump's intellectual property interest in his persona for use in trade. [00:30:00] Speaker 03: What it is not about is shielding Trump from criticism. [00:30:04] Speaker 03: And I think that is what makes this fundamentally different than saying. [00:30:07] Speaker 02: Not about the content of the message, which might have some significant correlation with what the named person might consent to or not. [00:30:18] Speaker 02: But you're saying that's just not the interest. [00:30:21] Speaker 03: I'm saying that's not the assertive governmental interest, unlike in Tam and Burnetti when the government was targeting expression. [00:30:27] Speaker 02: As a procedural matter, when one of these person naming marks is applied for, is there a process of giving notice to said person? [00:30:39] Speaker 03: Not as far as I'm aware. [00:30:40] Speaker 03: I think the burden is on the applicant. [00:30:42] Speaker 03: So if you put in an application that refers to Trump, and I think if you go through the... So if there's no consent presented, it's just assumed there is... Right. [00:30:53] Speaker 03: So a notice goes out, it's a rejection notice that says, we find that this refers to Trump, there's nothing on file saying that you have [00:31:01] Speaker 05: Produce Trump's written consent to this and then the burden is on the applicant again regardless of the viewpoint to Challenge that denial by coming forward with the written consent Your other rationale beyond right of publicity and privacy is protecting against consumer confusion for 2c, but isn't that the precise rationale for 2a which is [00:31:27] Speaker 05: a more narrowly tailored restriction to ban false suggestions of a connection with a person? [00:31:34] Speaker 03: So, certainly 2A is the primary means for dealing with that. [00:31:38] Speaker 03: The Patent and Trademark Office has recognized that 2C buttresses that interest and supplements it. [00:31:44] Speaker 03: And I think that's permissible to have a mutual agreement. [00:31:47] Speaker 05: But I'm just trying to understand. [00:31:48] Speaker 05: 2C must be about something beyond consumer confusion, given that we have 2A on the books. [00:31:56] Speaker 05: precisely tailored to consumer confusion? [00:31:59] Speaker 03: Well, again, I think it's okay, particularly in the context of something like a trademark registration program, to have mutually reinforcing provisions. [00:32:09] Speaker 03: So I refer the court to the Supreme Court's decision in the so-called Gay Olympics case, San Francisco Arts and Athletics versus the U.S. [00:32:17] Speaker 03: Olympic Committee. [00:32:18] Speaker 03: And there, what the Supreme Court recognized [00:32:20] Speaker 03: was the government had an interest, although 2A was also in place, the Supreme Court said the government's interest in giving protection to the word Olympics and going and preventing possible consumer confusion there or association [00:32:35] Speaker 03: may allow for an even broader exemption that was applied there to the word Olympics that would be captured by 2A. [00:32:43] Speaker 03: And that was something the Supreme Court thought was acceptable, particularly in light of the commercial context to which the Lanham Act applies. [00:32:51] Speaker 03: So I do think that it is OK and permissible for Congress to say that certain kinds of conduct are particularly susceptible to consumer confusion and to misuse [00:33:02] Speaker 03: and to draft a broader supplementary rule that applies in that context. [00:33:07] Speaker 02: Part of, I guess, the problem that I'm having is that conceptually that seems true, but it seems like the exceptional case of what 2C would apply to rather than the ordinary case. [00:33:24] Speaker 02: The Tom Brady example seems, I don't know, [00:33:30] Speaker 02: an unusual one, whereas the examples of negative commentary marks seems like the heartland of 2C of what nobody would dream of attributing to the named person, in which case, well, [00:33:48] Speaker 03: So I would just take issue as an empirical matter with that intuition. [00:33:52] Speaker 03: I think this case is the exceptional case where somebody's trying to trademark what is essentially a political slogan. [00:33:58] Speaker 03: The heartland of 2C and indeed all of the Lanham Act is not about [00:34:03] Speaker 03: addressing political speech or expression, it's about source identifiers for goods and commerce. [00:34:10] Speaker 03: So I think the most common application you're going to see is something much more like Obama pajama, which was a case from about 10 years ago. [00:34:19] Speaker 03: something where there's not any clear statement of political valence one way or the other, but rather just an attempt to capitalize on somebody's celebrity and to use that without authorization in order to try to sell goods in commerce and to attract attention. [00:34:36] Speaker 03: And that's the heartland of what the right of publicity is addressing. [00:34:38] Speaker 05: Wouldn't 2A be the basis for that as well? [00:34:42] Speaker 03: I could tell you that Obama pajama was a 2C rejection. [00:34:47] Speaker 03: One of the advantages of 2C is that it doesn't provide a fight line. [00:34:55] Speaker 02: It requires no real factual inquiry for the examiner. [00:34:58] Speaker 02: Exactly. [00:35:00] Speaker 03: It's administrable. [00:35:01] Speaker 02: Incredibly simple. [00:35:02] Speaker 03: Yes. [00:35:03] Speaker 03: And I think that's a virtue. [00:35:04] Speaker 03: And I think, particularly in the commercial sphere, under central Hudson, you don't need a perfect fit. [00:35:10] Speaker 01: You need a legitimate interest. [00:35:11] Speaker 01: But where's the government interest, since you agree that, as I understand it, that the right of publicity or the right of privacy doesn't apply as a matter of tort law under these circumstances? [00:35:24] Speaker 01: That you could not give a president [00:35:30] Speaker 01: tort law right to sue somebody for violation of his right of publicity when there is political criticism. [00:35:41] Speaker 01: So where is the government interest? [00:35:44] Speaker 01: Forget about the breadth of the statute and the fact that it may have some constitutional applications. [00:35:50] Speaker 01: How can it be that the government has an interest here which couldn't be recognized in tort law? [00:36:01] Speaker 03: So I would take issue. [00:36:02] Speaker 03: I'm not conceding that what Mr. Elster is trying to do could not be the basis for tort liability. [00:36:08] Speaker 03: And I want to be polluted on this point. [00:36:12] Speaker 03: There is a fundamental difference between putting a message on a t-shirt or trying to say that message and engage in political speech and incorporating somebody's identity into a trademark. [00:36:24] Speaker 01: And what I do think would be actionable. [00:36:28] Speaker 01: has ever sustained liability under circumstances like this? [00:36:35] Speaker 01: I'm not aware of any case. [00:36:37] Speaker 01: Can you cite any case? [00:36:38] Speaker 03: I'm not aware of a countervailing example but section 47 of the restatement says categorically [00:36:44] Speaker 03: a canonical example of how an infringement of the rights of publicity is incorporating somebody's name into a trademark without their consent. [00:36:54] Speaker 03: And so I do think that this is fundamentally different. [00:36:57] Speaker 01: I'd also like to... The restatement also says it's got to be cabin by First Amendment interests. [00:37:02] Speaker 03: And I think that that starts to be implicated when you're operating outside of the use in trade. [00:37:08] Speaker 03: Where a lot of the action is here is figuring out when something crosses over from use in trade to creation or expression. [00:37:19] Speaker 03: Doubtless complicated and difficult questions at the margins of that but one place where it is very clear and Administrable and free of those questions is what you're talking about a program that only applies to use and trademarks I'd also like to return back to the edge broadcasting case. [00:37:37] Speaker 03: I mentioned earlier I took a [00:37:39] Speaker 03: And perhaps I misunderstood my friend, but I understood him to say that yes, this statute does have constitutional applications. [00:37:46] Speaker 03: He went through three different situations where 2C might apply. [00:37:50] Speaker 03: And he seemed to recognize there was a legitimate governmental interest supporting many of those applications. [00:37:55] Speaker 03: And he said, but it's just not as constitutional as applied here, or the government's interest. [00:38:00] Speaker 03: isn't particularly strong, as applied here. [00:38:03] Speaker 03: I take issue with that. [00:38:05] Speaker 03: But even if you accept what he's saying, under edge broadcasting and central Hudson, which does not require perfect tailoring, that's enough to sustain Section 2C. [00:38:13] Speaker 02: Can you just remind me, what was edge broadcasting specifically about? [00:38:17] Speaker 03: It's broadcasting was a case about radio licenses and there was a broadcaster. [00:38:22] Speaker 03: It was at the North Carolina Virginia border. [00:38:25] Speaker 03: There were lottery. [00:38:27] Speaker 03: One state allowed water is the other did not and there was a advertisement about. [00:38:33] Speaker 03: A broadcaster who was in the non-lottery state, North Carolina, but whose service area included Virginia, wanted to run lottery ads that would reach into Virginia because they wanted the revenue from that. [00:38:46] Speaker 03: And there was a categorical rule that said if you're in a non-lottery state, you can't air ads from promoting the lottery. [00:38:55] Speaker 03: And there was an argument made there that, as applied to the factual circumstances of that case, that the government interest wasn't particularly forwarded by, or furthered, I should say, by applying that prohibition there. [00:39:09] Speaker 03: And the Supreme Court said that's the wrong question to ask. [00:39:13] Speaker 03: Instead, you don't look at the [00:39:16] Speaker 03: extent to which the interest is furthered as applied to that particular plaintiff, rather you look at the general course of conduct the government is regulating. [00:39:25] Speaker 03: In the commercial sphere context, you do not think about this on an as-applied basis. [00:39:31] Speaker 03: And I think that given, especially in light of what I took to be Mr. Elster's recognition, that there are legitimate interests here. [00:39:38] Speaker 03: And I think he has to recognize that. [00:39:41] Speaker 01: The problem with that argument seems to me [00:39:43] Speaker 01: is that it looks as though the 2C's a very significant part of the 2C application would be unconstitutional and that you're saying it can be preserved because it has some minor protection in the Brady example or some other example like that. [00:40:03] Speaker 03: Well, I think, again, some of this is an empirical question that goes to, I think the fact that this case involves a political slogan risks creating the intuition that the heartland of 2C is about political speech. [00:40:17] Speaker 03: And that's simply incorrect. [00:40:18] Speaker 03: That's not what this provision is mostly about. [00:40:20] Speaker 03: It is not what it targets. [00:40:22] Speaker 03: It is about something which most states similarly recognize as a basic commercial right, the right not to have your identity appropriated. [00:40:30] Speaker 01: And at bottom, their position is quite... But not in circumstances like this. [00:40:36] Speaker 01: I mean, you're not able to cite a single case which has imposed tort liability in a situation where it's a speech on a controversial issue. [00:40:46] Speaker 01: And the individual who is being criticized is suing for interference with his right of publicity. [00:40:54] Speaker 03: I haven't seen a countervailing case either. [00:40:56] Speaker 03: And again, this is not about the speech. [00:40:58] Speaker 03: This is about the trademark. [00:41:00] Speaker 03: And those two are, in fact, the heartland baked into the very premise of Tam and Brumetti is that there's a difference between the speech [00:41:09] Speaker 03: and the source identifier. [00:41:10] Speaker 03: Tam and Brunetti were about the speech. [00:41:12] Speaker 03: The government was targeting expression. [00:41:15] Speaker 03: This is not that case. [00:41:16] Speaker 03: The government is targeting the commercial conduct of selecting a source identifier that misappropriates someone else's identity. [00:41:23] Speaker 03: And I don't think the court should lightly disregard that interest, which is widely recognized. [00:41:27] Speaker 03: It's reflected in the statutes of at least 33 states or the common law of 33 states. [00:41:33] Speaker 03: And though Mr. Elster is kind of dismissive of the rights of publicity, on page 41 of his brief, he comes awfully close to saying the court should just not treat that as a legitimate interest. [00:41:43] Speaker 03: I don't think the court should rush to disregard such a widely recognized form of intellectual property and to suggest that Congress has no legitimate interest in a trademark protection statute of all places in showing regard for intellectual property rights. [00:41:59] Speaker 05: Would you agree that 2C is a content-based regulation in the sense that it's treating differently trademark speech that identifies an individual, treating those kinds of trademark speech different than other trademark speech? [00:42:17] Speaker 03: In some sense, it's certainly content-based. [00:42:20] Speaker 03: If you look to the Supreme Court's decision in Reed, the way that defined content-based, to decide the applicability, you need to look to the subject of the content of the speech to figure out whether the restriction applies. [00:42:33] Speaker 03: Of course, it's content-based. [00:42:34] Speaker 03: But that's going to be true about any number of provisions in the Lanham Act. [00:42:37] Speaker 03: And I think the court should be very careful before it adopts and extends what it said in Tam and Bernetti and applies that not just to a restriction or a prohibition that's related to targeting expression and leveraging the trademark program in an effort to affect speech outside the program, and instead applies it to a core provision designed to regulate what types of source identifiers are appropriate. [00:43:02] Speaker 05: Okay, but then what would be the reason why it's not a content-based regulation? [00:43:09] Speaker 03: I'm not saying it's not content-based in some sense. [00:43:12] Speaker 03: What I'm saying is it's not content-based in the sense that read, for example, would be talking about. [00:43:19] Speaker 03: Certainly not. [00:43:19] Speaker 03: It's distinguishable from TAM and Burnetti. [00:43:22] Speaker 03: So again, for example, [00:43:26] Speaker 03: In other First Amendment contexts, for example, like a limited public forum, and I don't need to have the fight right now about whether or not the limited public forum analogy applies here, though I'm very happy to answer questions about that. [00:43:38] Speaker 03: But in a limited public forum, the government can engage in content discrimination. [00:43:43] Speaker 03: So the fact that this affects content is not fatal on its face, or doesn't even necessarily mean strict scrutiny or anything like it has to apply. [00:43:53] Speaker 03: in a limited public forum, content discrimination is fine as long as it's reasonably related to the purposes of the forum. [00:44:00] Speaker 03: And I would say, for example, the Lanham Act is about protecting intellectual property rights and furthering the use of source identifiers in commerce. [00:44:10] Speaker 03: Certainly showing regard for an intellectual property right like the right to publicity and the right to privacy is consonant with the purposes of the forum and therefore would be upheld. [00:44:20] Speaker 01: Before you sit down, could you address the question that Judge Serrano and I were asking your friend on the other side? [00:44:30] Speaker 01: How does the Patent and Trademark Office address the problem of trademarking political slogans that are in general currency and would permit somebody to get the rights to a trademark on a t-shirt and to prevent other people from putting that same slogan on another t-shirt? [00:44:55] Speaker 03: So I don't think the Patent and Trademark Office has much of a solution here, but I thought that colloquy really exposed the fact that First Amendment interests are implicated in both directions in this case, and the fact that there's a certain irony that Mr. Elster is in here invoking the First Amendment in an effort to get exclusive rights such that he could prevent others from engaging in the same speech that he wants to engage in. [00:45:23] Speaker 01: OK. [00:45:25] Speaker 01: All right, thank you very much. [00:45:26] Speaker 01: Thank you, Your Honor. [00:45:27] Speaker 01: Thank you very much, Mr. Taylor. [00:45:31] Speaker 01: We'll give you two minutes here. [00:45:37] Speaker 04: I'll try to be brief here, just a few quick points in rebuttal. [00:45:41] Speaker 04: First, we're not arguing that this statute is viewpoint-based, but the statute is plainly content-based. [00:45:47] Speaker 04: The government has agreed, and it's not content-based in some trivial way. [00:45:52] Speaker 01: Why isn't it viewpoint-based in the sense that it's the viewpoints approved by the public figure that get trademarked and those that he or she disapproves don't? [00:46:04] Speaker 04: Well, I think that's right. [00:46:05] Speaker 04: This is a particularly pernicious form of content-based regulation because not only does it make... But why isn't that viewpoint-based? [00:46:10] Speaker 04: It depends on the viewpoint of the public individual as to whether it gets... I think there might be an argument that it is, but we think this law is so indefensible, even under Central Hudson, that we're not pressing that argument here. [00:46:22] Speaker 04: But you're right to note that it hands public figures a monopoly [00:46:25] Speaker 04: about speech that is used about them in registered trademarks. [00:46:29] Speaker 04: And so I think that if the government, as it says, is not contesting or refighting this court's cases in Tam and Bernetti, then you have to apply at least Central Hudson. [00:46:38] Speaker 04: So on Central Hudson, two quick points. [00:46:41] Speaker 04: The government acts like it wants this court to ignore the nature of the mark in this case and calls it an exceptional case, a marginal case, not the garden variety mark. [00:46:50] Speaker 04: But even if you look at the general program as a whole, [00:46:55] Speaker 04: The statute here sweeps way too far, and this case shows that. [00:46:59] Speaker 04: It's an example. [00:47:00] Speaker 04: It is the government's burden. [00:47:01] Speaker 04: It has an evidentiary burden under Central Hudson to show that the statute here doesn't trench unprotected speech. [00:47:11] Speaker 04: I'm just going to quickly read a couple of quotes from Central Hudson, because I think Central Hudson itself forecloses the government's argument here. [00:47:19] Speaker 04: The restriction must directly advance the state interest involved. [00:47:23] Speaker 04: The regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. [00:47:28] Speaker 04: And if the government interest could be served by a more limited restriction on commercial speech, the excessive restrictions cannot survive. [00:47:35] Speaker 04: The state cannot regulate speech that poses no danger to the asserted state interest, nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. [00:47:45] Speaker 02: Do you have an idea for what a narrower form of 2C might look like? [00:47:52] Speaker 04: Well, it might look like 2A to start. [00:47:54] Speaker 04: I think that gets you about 90% of where the government might want to go. [00:47:58] Speaker 02: What might be some words that would start to capture the remaining 10%? [00:48:02] Speaker 04: Well, I think the Tom Brady example. [00:48:05] Speaker 04: Obama's pajamas, I think, is sort of a marginal case. [00:48:08] Speaker 04: But how would you write it, I think, is the question. [00:48:12] Speaker 04: Well, it's not, it's respectful of Congress. [00:48:14] Speaker 02: I'm trying to get, to grab a hold, get a better hold on what the concept is that might be captureable. [00:48:24] Speaker 04: Right, so I think the underlying concept is if someone, if a celebrity or politician's name or likeness is being used, [00:48:33] Speaker 04: toward no kind of First Amendment end, no expressive end, just merely for the purpose of capturing the consuming public's attention and getting them to buy the product. [00:48:42] Speaker 04: And it's totally orthogonal to any kind of message. [00:48:45] Speaker 04: I think the First Amendment right that the mark holder has in using that person's name is pretty minimal. [00:48:51] Speaker 04: And there might be an opportunity for Congress to just target that more narrow circumstance. [00:48:58] Speaker 01: What Supreme Court case in the commercial and the product advertising context distinguishes between coarse First Amendment speech and mere commercial speech? [00:49:13] Speaker 04: Well, I think the origin of the Supreme Court's modern commercial speech cases is Virginia Board of Pharmacists, and then Central Hudson establishes the four-part test. [00:49:24] Speaker 04: But I think that as those cases show in other cases, it can be difficult to determine the difference between purely commercial speech and some kind of expressive speech. [00:49:35] Speaker 04: You know, this court tried to, in its decision in Brunetti, come up with a bifurcated framework where you apply strict scrutiny if it's regulating only the expressive components of a mark, but intermediate scrutiny if it's regulating only the commercial components of a mark. [00:49:48] Speaker 04: I think in a given case, that can be difficult to discern the difference between the two. [00:49:52] Speaker 04: And I think if a mark has a kind of political message or expressive component that goes beyond the merely commercial, I think the argument would mean we would submit that there's a pretty good case to be made for applying the stricter form of scrutiny there. [00:50:09] Speaker 04: But we're not asking this court to go that far. [00:50:11] Speaker 04: I think all this court needs to do is apply Central Hudson, because it's a pretty straightforward case. [00:50:15] Speaker 01: So why is this a content-based regulation? [00:50:19] Speaker 04: It's a content-based regulation, because as this court recognized in Brunetti, it makes it so it's regulating the content of a mark, the speech that can be used in a mark, based entirely on the words that are used. [00:50:33] Speaker 01: And that makes it content. [00:50:35] Speaker 01: It's saying if the famous person, let's say, is identified or not identified. [00:50:41] Speaker 01: That's the only thing that makes it content-based, right? [00:50:45] Speaker 04: Well, that's right. [00:50:46] Speaker 04: So the PTO has [00:50:48] Speaker 04: registered the mark, no disease is too small. [00:50:51] Speaker 04: But Trump too small can't be registered. [00:50:53] Speaker 04: So the difference between those two is speech, right? [00:50:55] Speaker 04: It's the content of the speech. [00:50:57] Speaker 04: And the government has decided to draw a line between the two based on the speech that is used to communicate the mark. [00:51:05] Speaker 04: And that makes it content-based. [00:51:06] Speaker 04: And it's not just the Supreme Court. [00:51:08] Speaker 05: Do you think just about every provision in 1052 is content-based, all the restrictions? [00:51:14] Speaker 04: I think that's the nature of trading law. [00:51:16] Speaker 04: And I think that's one reason why Central Hudson at least allows for a slightly more flexible framework. [00:51:21] Speaker 04: Now, I will say the important thing about Central Hudson's scrutiny is that there is the first component, which is you've got to show that it's not deceptive speech in some commercial sense or misleading speech. [00:51:33] Speaker 04: So if you have a mark that creates confusion as to the source of the mark, [00:51:38] Speaker 04: or is falsely suggesting an endorsement, or just does something else that will work some real economic harm to consumers, that can properly be restricted under central Hudson. [00:51:49] Speaker 04: That distinguishes it from political speech, which can be false, true, or what have you. [00:51:55] Speaker 01: So suppose the statute said simply, you can't have a mark which bears the name, signature, or likeness of a famous person. [00:52:07] Speaker 04: Would that be OK? [00:52:09] Speaker 04: without the opportunity for consent. [00:52:11] Speaker 04: I can't imagine that Congress would want to enact that statute, because if you wanted to create a business with your own name. [00:52:17] Speaker 04: No, but would that be OK? [00:52:18] Speaker 04: What's that? [00:52:19] Speaker 04: Would that be OK? [00:52:20] Speaker 04: I think it's still content-based, and they'd have to justify it. [00:52:23] Speaker 04: I don't know what the justification would be there. [00:52:26] Speaker 04: It's the government's burden. [00:52:27] Speaker 04: If it couldn't come up with a justification, then I don't think it would be OK. [00:52:31] Speaker 04: It would eliminate this problem that you've identified, Judge Dyke, about creating a kind of monopoly in the use of someone's famous person's name. [00:52:38] Speaker 02: Can I just get clarity about are we talking about one that [00:52:42] Speaker 02: doesn't have a consent qualifier. [00:52:46] Speaker 04: Yes. [00:52:46] Speaker 04: That's the way that I understood the hypothetical. [00:52:48] Speaker 02: Mr. Trump couldn't trademark his own name. [00:52:51] Speaker 04: Right. [00:52:51] Speaker 04: And that's why I don't think that Congress would enact a statute like that. [00:52:56] Speaker 04: Because I think Trump properly has an interest in the commercial value of his name, which is the name of his company. [00:53:01] Speaker 04: And I think that he could trademark that. [00:53:03] Speaker 04: We're not saying that he can't. [00:53:05] Speaker 04: But what he doesn't have is some kind of absolute right to prohibit commercial speech about him just because it uses his name. [00:53:13] Speaker 04: I think that's antithetical to the First Amendment. [00:53:15] Speaker 04: And the last point I would make, and this dovetails with it, is that the government places heavy emphasis on the fact that we're using his name or likeness, or my client is rather, in trade, as if that's the thing that matters. [00:53:27] Speaker 04: But that's an extraordinary argument because it would apply equally to copyright. [00:53:31] Speaker 04: And it would mean that Trump would have a right to prohibit unauthorized biographies about him, or newspaper accounts that use his name, or t-shirts that express messages. [00:53:43] Speaker 04: And the government today embraces the consequences of this. [00:53:46] Speaker 04: It actually takes the position that my client could be subject to liability for selling [00:53:51] Speaker 04: t-shirts and using his source identifier, a message that is critical of the former president of the United States, and could even be subject, I take it, to criminal prosecution. [00:54:00] Speaker 04: And if that is what the question of this case amounts to, question in this case amounts to, it's an even easier case than I thought, because that is utterly at war with the First Amendment. [00:54:10] Speaker 01: OK, I think we're out of time. [00:54:11] Speaker 01: Thank you very much. [00:54:12] Speaker 01: Any other questions? [00:54:13] Speaker 01: Thank both counsel. [00:54:14] Speaker 01: That was well argued from the case just submitted.