The approved and publishable amicus briefs in the appeal regarding the trademark registration of THE SLANTS are trickling in. Certainly interesting to see who is saying what. So far, they all seem to be on the side of The Slants, though interestingly the INTA amicus brief does not take a position on the First Amendment issue (maybe because that’s usually a subject raised by defendants in infringement cases?) but instead addresses, as is appropriate given INTA’s level of trademark expertise, the issue of 43(a) of the Lanham Act. INTA urges, understandably, that the constitutionality question “does not turn” on the availability or interpretation of 43(a) protection for unregistered marks.
What do we have? Here’s the amicus brief of Public Knowledge, styled as “in support of neither party”; here is Pro Football, Inc.’s (i.e., the Washington Redskins’) amicus brief very much in support of appellant; and now comes the First Amendment Lawyers Association (that’s Randazza and friends).
Here’s one we hadn’t counted on: a submission by the Rutherford Institute together with the Cato Institute. Cato’s blog post, authored by Ilya Shapiro, is here; the Cato / Rutherford amicus brief is here.
Hey, what happened to the ACLU, which, formerly (you should pardon the expression) confused, has now seen the light on this business? Evidently the dog ate their ECF registration, and the ACLU amicus brief was filed a day late — today — along with a motion seeking permission to do that, for reasons set out therein. Enough said — they are our friends (now) and, unlike those stinkers at Public Knowledge, say so right on the cover of their submission.
Okay, and what about those guys over at Public Knowledge? Read More…