It was exciting last Friday, arguing the appeal of the THE SLANTS*, at the Court of Appeals for the Federal Circuit! A little too exciting, so much so that, for a moment there, I was — the Recorder explains — actually my own worstest enemy!:
At the Federal Circuit, Tam and attorney Ronald Coleman are swimming against 34 years of precedents [sic]. But it sounded from Friday’s argument as if at least one judge wants to reconsider them. Judge Kimberly Moore described the seminal decision upholding Section 2(a) of the Lanham Act as outdated, cursory and a candidate for en banc review in light of “an immense evolution of Supreme Court jurisprudence on this point.”
Coleman at times seemed to be his own worst enemy during the 30-minute argument. The Goetz Fitzpatrick litigator sought to frame the case as one of administrative law, and had to be coaxed into making the constitutional case. When Judge Alan Lourie suggested that rejecting a trademark doesn’t limit speech, but actually expands it, Moore tried to help Coleman. “I would think you wouldn’t agree with that,” she told him. “Just to help you out a little bit, say no. Just say no.”
“I would agree with it,” Coleman told Lourie.
“You agreed with what he just said?” asked Moore.
Finally, Coleman got the hint. “I would agree that this court has every opportunity to make the First Amendment point,” he said. “I do believe this court has the opportunity to revisit its own precedent.”
Kind of. It’s not that I didn’t get the hint. We had, in fact, briefed the point extensively, both on our initial brief and on the reply brief. It’s that I mis-heard Judge Moore and misunderstood her cue, partially because I was indeed oriented entirely toward the non-constitutional arguments. That’s not surprising, because judges, including appellate judges, are usually not interested in upending their own precedent and, yes, are more likely to side with an appellant on procedural or statutory grounds rather than invoking constitutional rights.
But, again, we certainly had briefed this issue, and once I caught up with what Judge Moore had actually said (not “would agree” but “wouldnt’ agree”!) and got reoriented, I did, as he acknowledges, get us just fine in terms of the record, if perhaps I lost points for elegance.
Unfortunately for readers of the Recorder, the reporter covering the story is perhaps himself oriented — unfavorably, that is, concerning my client’s politically incorrect case. Therefore, besides presumably not reading the briefs (reporters don’t seem to usually be up for that), he left out a lot of other stuff on this subject, including the point that the precedent (singular) holding that there is no First Amendment right to a trademark registration has at the very least been brought into question not only by Supreme Court decisions but by subsequent legislation granting substantive rights to registrants.
Nor does he convey, in my view, the full extent of the PTO attorney’s rhetorical dilemma experienced in the course of the session, including a number of comments from the panel expressing skepticism about the quality of the examining attorney’s evidence and search techniques (e.g., pairing the words “slants” and “niggers” in Google searches to “prove” that when you search for “slants” you get “derogatory” results, as pointed out in our brief). At the end of the day, I may indeed be my own worst enemy, but I think it’s fair to say I was not my client’s worst enemy last Friday in Washington.
But you don’t have to reside your trust either in the Recorder reporter or your usually trustworthy but seldom excessively humble blogger. I posted the audio link on Friday’s update of a previous post but here, again, for your bloggy convenience, is a link to an MP3 of the full audio of the oral argument (it’s also embedded in the passage from the Recorder article).
Not that it matters all that much what the Recorder, LIKELIHOOD OF CONFUSION®, Simon Tam or you, my esteemed reader, think about it: The court will decide what it decides, and, well, sometimes oral argument makes a difference, and then there’s the other 95% of the time.
Says this reporter: It was a great experience; the judges and my adversary were well prepared and highly professional; and I look forward to doing it again.
* “The THE SLANTS”? I know. Sounds like “Mastercard card.” But hey, the mark is THE SLANTS, so it is the appeal of the trademark THE SLANTS, right?