of any mark that may disparage persons institutions beliefs or national symbols based on that provision the p t o denied respondents application to register the slants as a service mark for his band the p t o is ruling did not limit respondents ability to use the mark in commerce or otherwise to engage in expression or debate on any subject he wishes because section fifty two a is disparagement provision places a reasonable limit on access to a government program rather than a restriction on speech it does not violate the first amendment oh it's copyrighted copyright a government program i think we would say copyright and copyright registration is a government program but it's historically been much more tied to first amendment values to the incentivization of free expression the good part of that seems to me to ignore the fact that we have a culture in which we have t shirts and logos and and but that's the powerful important government program let me say two or three things about that first there's no question that through their music the slants are expressing views on social and political issues they have a first amendment right to do that they're able to copyright there are 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 are you willing to say that i will i think to give away any hypothetical statute without hearing the justification but i'll come as close as i possibly can to saying yes we would give that away it would be unconstitutional to deny copyright protection on that ground but i would also say even in the copyright context we would distinguish between limits on copyright protection and restrictions on speech for instance it's historically been the case and it remains the position of the copyright office that a person can't copyright new words or short phrases even if a person comes up with something that is original that is pitched the that makes a point if it's too short you can't get copyright protection we would certainly defend the constitutionality of that traditional limit on the scope of copyrightable but tiriel and if there were a first amendment challenge brought we would argue that there's a fundamental distinction between saying you can't copyright a for a forward for a use and saying you can't say the forward phrase or you can't infringement suit and so the statute i believe it seventeen u s c four eleven 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 if no number of a restriction on trademark that's correct you can file a suit under section eleven twenty five a of title fifteen under under the trademark laws either for infringement of an unregistered trademark or for unfair competition more generally that but on so i'm concerned that your government program argument is is circular the claim is you're not registering my mark because it's disparaging and your answer is well we run a program that doesn't include disparaging trademarks so that's why you're excluded it doesn't seem to me to advance the argument very much well i think that the disparagement provision is only one of a number of restrictions on copy i'm sorry on trademark register ability that really couldn't be placed on speech itself for example words to marks that are merely descriptive that are generic mark says to which the applicant is not the true owner because somebody else was previously using the mark in commerce those can't be registered either it was 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 makes that statement now what is what purpose or objective of trademark protection does this particular disparagement provision help along or further and i'm thinking of the provision that says you can say something nice about a minority group but you can't say something bad about with all the others i know the others i don't know at all but i know many of them and i can relate that you relate this i think congress evidently concluded that disparaging would hinder commercial development in the following way a trademark in and of itself is simply a source identifier its function is to tell the public from whom do the goods or services emanate it is not expressive in its own right now it is certainly true that many commercial actors will attempt to devise trademarks that not only can identify them as the source but that also are intended to convey positive messages about their products for example if you see that the name jiffy lube or a b and b that's called piney vista that the mark is it is sort of a dual purpose communication it both identifies the source and it serves as a kind of miniature advertisement there is always the danger as the some of the amicus briefs are so i'd point out that when a person uses as his mark words that have other meanings in common discourse that it will distract the consumer from the intended purpose of the trademark qua trademark which is to identify the source and basically congress says as long as you are promoting your own product saying nice things about people we'll put up with that level of distraction you're supposed to be the application here had barrington i think that under the p t o is historical practice probably not i believe and i think the same thing would be true of other racial epithets terms that have long been used as lawyers for particular minority group that disparaging of everyone else slants are superior was superior to who i think the basis for the p t o is proctor some where you obviously don't have that this case is that the term slaps in and of itself when used in relation to asian a mayor have it right i want to get the answer to my question because that is the one question i have only question i have for you is what purpose related to trademarks objective does this and i want to be sure i have your answer your answer so far was it prevents the or it helps to prevent the user of the product from being distracted from the basic message which is i made this product i take it that's your answer and if that's your answer i will by follow up questions that would be i can think probably and with my law clerks perhaps fifty thousand examples of instances where the space the trademark provides is used for very distracting messages probably as much or more so than the wanted issue disparagement and what business does congress have picking out this one but letting all the other distractions exist well i think i think what you've described is my first line answer and i think the precise justification for different kinds of for prohibiting registration of different kinds of disparaging trademarks would depend to some extent on who is being disparaged that is in the kissin are edging your answer was distracting and and  one of the great things of ninety nine percent of all trademarks is they don't just identify boy do they distract it's a form of advertising so if the answer is distracting not you didn't provide an answer it was spared you and your answer did why disparagement was they don't want distraction from the message they don't want they don't want to struction and they don't want particular type types of distraction that is when we're dead that's where i have the question what relation is there to the particular type of distraction disparagement and any purpose of a trademark the dispute that type  distraction that may be caused by a disparaging trademark will depend significantly on the precise type of disparagement issue that is in the case of racial epithets these words are known to cause harm to cause controversy they in some sense they may no be no more distracting than a positive message but congress can determine if this is the wrong kind of destruction another place another type would be a competing software manufacturer who wants to register the trade mart coke stinks who wants to identifies his own product with a sentiment that is antithetical to one of his competitors congress can determine if we would prefer not to encourage that form of commerce we can prefer to that that commercial actors will promote their own products rather than disparage others obviously under the first amendment we couldn't prevent that kind of criticism but we can decline to encourage and start assuming government speech itself is non involved i always thought that government programs were subject to one extremely important constraint which is that they can't make distinctions based on viewpoint so why isn't this doing exactly that because it proves it precludes disparagement  cash a wide net yes well that's absolutely true and it precludes disparagement of democrats and republicans alike and so forth and so on but it makes a very important distinction which is that you can say good things about some person or group but you can't say bad things about some person or group so for example let's say that i wanted a mark that expressed the idea that all politicians are corrupt or just the democrats are corrupt either way it doesn't matter i couldn't get that mark even though i could get a mark so that all politicians are virtuous or that all democrats are virtuous either way doesn't matter you see the point the point is that i can say good things about something but i can't say bad things about something and i would have thought that that was a fairly classic case of viewpoint discrimination well as we pointed out on our brief laws like libel laws have not historically been treated as discriminating based on viewpoint even though they swear that's libel isn't one of our historically different but very distinct categories and you don't make the claim that this force into a category of low value speech in the way that libel laws in the way that defamation does work fighting words or some unlike that and you're not looking to create a new category so in that case it seems that the viewpoint based ban applies and this 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 can say something bad about you can say something good about somebody but not something bad about somebody or something well certainly if you singled out a particular category of people like political officials and say said you can't say anything bad about any of them but you can say all the good things you want i think that would be viewpoint based because it would be protected a discreet a group of people would let me just give a couple of other but but if you didn't limit it if if you said you can't say anything bad about anybody any time again that's ok again we're not saying you can't say anything bad we're saying we don't register your trademark if it is disparaging certainly not to know that that's said even in a government program even assuming that this is not just a classic speech restriction you're still subject to the constraint that you can't discriminate on the basis of viewpoint  periods it's not a majority opinion but the court there was confronted with a law that made it illegal to i believe it was post signs or engage in expressive activity within five hundred feet of a foreign embassy that was intended to bring the foreign government into contempt or disrepute and the lower struck down as sweeping too broadly but at least the early would have held that it was not viewpoint based because it applied to all foreign embassies it didn't turn on the nature of the criticism another example i would give and it's a hypothetical example but at least i have a strong instinct as to how the the case should be decided suppose at a public university the school set aside a particular room where students could post messages on topics that were of interest concern to them as a way of promoting debate in a non confrontational way and the school said just to ground rules no racial epithets and no personal attacks on any other members of the school community it would seem extraordinary to say that's a viewpoint based distinction that can't stand because you're allowed to say complimentary things about your fellow students so that it was out of the government is the omnipresent school teacher i mean is that what you're saying no right now the government's a school teacher no it again that analysis would apply only if the school the public school was setting aside a room in its own facility clearly if the government attempted more broadly to the law unconstitutional even though they found it not to be viewpoint but one distinction is the scope of the government program if you're talking about a particular discussion then you and any public university that's one thing if you're talking about the entire trademark program that seems to me to be something else well that the trademark registration program and trademarks generally have not historically served as the of the locals for expression that is the lanham act defines trademark service mark purely by reference to their source identification functions and i think it's set to get back to copyright for just a second i think it's at least noteworthy that everyone would recognize that mr ham is not entitled to a copyright on the slaps the copyright office doesn't register short phrases two words is certainly short especially when one of the examining attorney went through this in a lot of detail and the trademark examiner acknowledged that mr tams sincere intent appeared to be to reclaim the word to use it as a symbol of asian american pride rather than to use it 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 recognized that this was mr tams intent still found the use of the word as a band name of fence and that the point i was trying to make about copyright is is not that copyright protection would be denied on the ground of disparagement you're right it would be denied because it's a short phrase and not even in the original phrase but copyright is kind of the branch of intellectual property law that is specifically intended to foster free expression on matters of cultural and political among other significance  purposes i don't deny that trademarks are used for expression purposes as i was saying earlier i think many commercial afters will pick a mark that will not only serve as a source identifier but that will cast their  attractive light and or that will communicate a message on some other topic might my only point is in deciding whether a particular trademark should be registered congress is entitled to focus exclusively on the source identification aspect and i wonder if you are not stretching this that the concept of a government program pat the breaking point the government provides lots of services to the general public and i don't think you would say that those fall within the government program line of cases that you're talking about like providing police protection to the general public or providing fire protection to the general public those cost money and those are government programs can the government say well we're going to provide protection for some groups but not for other groups no i think those would raise serious i mean depending on the nature of the distinction equal protection problems potential tundra first amendment problems two of the nature of the distinction was based on the person's speech isn't that right well certainly i mean clearly if it was based on viewpoint and clearly i would say you know absolutely clearly if it was based on viewpoint and so i guess i don't want to interrupt your answer to justice alito if but i want to get back to because i don't really understand the answer that you gave me before you said a government regulation that distinguished  between saying politicians are good and virtuous and politicians are corrupt would clearly be viewpoint based is that right so and similarly if you said that the flag is a wonderful emblem this this applies to national symbols but you could other and get trademark but it but it's straight sweeps with a broad brush brush and i think the reason that viewpoint based discrimination has historically been the most display verd type of regulation from a first amendment perspective is that it creates the danger that the government is attempting to suppress disfavored messages i mean there was a there's a tab a trademark trial and appeal board decision from nine hundred sixty nine that declined to register a proposed trademark that was a centrally the soviet hammer and sickle with a slash through it and registration was denied on the grounds that it disparaged the national symbol of the soviet union now obviously hostility towards the soviet union was not inconsistent with united states policy in one nine hundred sixty nine no one would have perceived the denial of trademark registration as an attempt to suppress a disfavored viewpoint and the point of the staff at the point of my defense of the statute is it cast its weak with such a broad  saying it does so much viewpoint based discrimination that it becomes all right but it does so i mean it imposes this restriction only within the confines of a government program and yes he has and i'm willing to give you that but even government programs again assuming it's not government speech itself even government programs are subject to this constraint which is that you can't distinguish based on the viewpoint of a speaker well part part of this government program is government speech and let me just describe the two types of basic services that the p t o performs in the course of administering the program first when an application is filed the examining attorney and potentially that the trademark trial and appeal board will go through it to see whether the applicant satisfies the statutory prerequisites to registration and some of those like ten fifty two a are not essential to having a valid trademark but many of the prerequisites to registration overlap with the prerequisites to having a valid trademark and so when the examining attorney decides is this merely descriptive is it generic does it serve as a mark that consumers will associate with the product in commerce is this person the true owner of the the examining attorney is deciding the same sorts of questions that could arise in an infringement suit if the applicant ever filed one and there  and that's the same thing that's that's that's that's the same thing as disparagement i was some just saying many of the other statutory pre work requisites do overlap with the prerequisites to having a valid trademark and so if the examining attorney approves the application he is giving the applicant at least some comfort that he can continue to use the mark in commerce with a degree of confidence that if somebody else in french has the mark he will be able to satisfy the prerequisites the running the federal courts is a government program can you say that the courts when it comes to trademarks the courts are not open for actions to enforce infringement of a disparaging trademark i mean if congress had taken to its furthest possible step of the desire to disassociate the federal government from the enforcement of folk from these americans how did but that it was framed in the furthest possible step but it's the same you apply the same analysis you do simply with the is in this case how far can they go in defining the government program i think we would typically think of the p t o as exercise of discretionary authority and as disc the exercise o discretionary authority by an executive branch agency as as different from the neutral enforcement of the law by by the courts obviously if it out of government program can you do anything you want with speech or whatever what are the restrictions that we can us of viewpoint discrimination in cases where the the program raises the concern that the government is attempting to promote just favored messages and suppress this favored messages the program would be unconstitutional that that's the second form of the service that the p t o provides in the course of administering the program is that if it decides the trademark should be registered it publishes the trademark on the federal register and publication as is significant in a variety of ways first outside the context of legal suits publication of the trademark on the federal register reduces the likelihood that any infringement will occur because it provides notice to potential zinka competitors in commerce that the p t o has approved the smart it will give them an incentive to choose marks that are not confusingly similar the second would be because your time is running in question that this should be judged by the standards that typically apply to government benefits under a government program although the statute doesn't draw an entirely bright line it's sufficiently clear the court has approved for instance not clear enough for them to get it right it's it's not a bright line rule i would say two things to two for the things before i sit down the first is that i think a lot of the examples that the p t o has had trouble with and where it may stay there may be an appearance and perhaps the fact of inconsistent decisions or instances where people are deliberately using terms that have historically been insulting but with the intent to be edgy provocative to reclaim slur this is entirely legitimate but when people self consciously use words in a way other than they have traditionally been used it's not surprising that that sometimes they're there misunderstood that the second thing i'd say is the examples that the other side gives are raised the concern that the p t o might have approved some trademarks that it shouldn't have approved but they really haven't identified any examples of marks that were rejected as disparaging even though no reasonable person secada thank you mr chief justice and may please the court if our client mr simon tam had sought to register the mark of his band as the proud asians we would not be here today but he did not do that instead he sought to register the slants suppose he had this hypothetical case the facts are largely parallel of these other than the band are non asians they use make up the exaggerate slanted eyes and they make fun of asians could the government under properly draw a statute declined to register that as a trademark in your view they could not those first amendment protects absolutely outrageous speech insofar as trademarks are concerned that is correct i think you have to take that position well when we take that position because because mar constitute both commercial speech and noncommercial speech and the disparagement clause specifically targets the noncommercial speech and denies registration to marks that only express negative views that i have but in your view the congress could not draw a statute even different of the two to make the distinction that the hypotheticals points out and the congress in your view can draw no statute denying trademark protection in the hypothetical case i cannot think of a circumstance under which that could occur then i have a question for you this is a bit different than in most cases no one stopping your client from calling itself the slants no one stopping them from advertising themselves that way or signing contracts that way or engaging in any activity except that of stopping someone else from using the same trademark but even certainly if you if another band called themselves slants they would be subject to deceptive advertising and because they wouldn't be this slant so there is a big difference you are asking the government to ensure your name to the extent of protecting it in a way that it chooses not to so if there is a reason why the arguments appealing and why shouldn't we consider it in those ways when your speech is not being burdened in any traditional way the registration program the regulatory system of trademark registration is widely available to a broad number of mark holders who seek the legal protections of registration in this case the government has used the disparagement clause to selectively to die those legal benefits to a mark holder expressing  that the government favors as opposed to mark holders who receive those benefits because they expressed nec the neutral or positive use that the government does favor doesn't answer my question you can still use your name but  it is a it is a burden because our client is denied the benefits of legal protections that are necessary for him to compete in the marketplace with another band and the only reason for the dot denial of those benefits is link what he's doing he could still his only resort at that point would be to seek the protection of order to assert his right to exclusive use of the mark under section forty three or state trademark law or common law none of which have the extensive and substantial benefits that this court has recognized under trademark registration it seems to me i mean does your argument depend upon the breadth of the government program and let's said you had a government program putting on a festival or lecture series we only want pro shakespeare presentations it's about celebrating shakespeare and if you disparage shakespeare you can't participate is really wrong with that i don't believe there is in a in that limited forum that that that would make a difference but this is not that case this is a widely available program that's made that  can can utilise well but you know it's not it is if you have a disparaging trademark you can't utilize it except again that targets the noncommercial aspect speech which has nothing to do with the  commercial objectives of the lanham act well i guess i don't understand yet your distinction why the only celebrating shakespeare program is is ok but the trademark one is not you can't disparage shakespeare you can't have disparag  marks about anybody in the trademark context is it just the comprehensive nature of the government program in this case it is but why why does that matter you know i mean maybe the government just decides we want to celebrate everything quite like that after all just sort of my are pointed out this is more like a single bulletin board on the train station the train station which has a thousand bulletin boards people can say whatever they want but this bulletin board one out of a thousand is reserved today for people who want to say nice things about shakespeare this is not a general expression program this is a program that has one objective the objective is the source of the product it stops nobody from saying anything always says is when you're trying to fulfill our objective which is why dent defy the source of your product if you want put a little circle with an r in it and write down beneath in tiny letters mr and mrs smith anything you want but in that circle not the thing that says the insulting thing about somebody else see very much like one shakespeare celebration bored out of a million well let me say ten million to make the point stronger you say that's that's where you can't express yourself so and then i said to them well why do you do that and they said because you know the purpose of  a trademark is to identify a source it's not to get people into extraneous arguments and what this will do is it will get people into extraneous argument losing or diluting  sigh of a program that seeks to use a trademark to identify a source now that's what i got out of my answer to the last question on the other side and i would like to know what you think actually i think the  government's position is settled i don't care what their position is i want to know what you think in respect to the question i'm asking well i i think what the government's trying to do here is simply encourage commercial actors to conduct business in such a way to not insult customers no not not conduct business they can insult customers but what you could have fifty thousand insults on every physical item that you put out all you cannot do is when it comes to a little mark or a form of words that is designed to say one thing i'm repeating myself i am the source of the product and you can do that in little letters big letters tiny letters no let whatever but they are you have to stick to business and if you're going to go beyond business don't use insults do you believe that they could stop trademarks from saying this is the trademark you can't use joe jones is a jerk they could not stop they could not stop that they can't can they say smiths beer is poison they could not oh my goodness i mean there are laws all over the place that stop you from saying that a competitor is has bad products it's called product disparagement there are laws all over the place that stop you from saying joe johns is a jerk or something more specific they're called were not banning the use of those words and in addition pacifica did say that notwithstanding the content restrictions imposed on on those words the fact the matter was that if there the restrictions were motivated by a negative view of the ideological or political message being conveyed that would be unconstitutional i'm place or manner there is time place or manner in fact you can use these words anywhere at any time in your performance just don't use them as the registered source of the message i am the owner of the band time place and manner you have the entire universe where you can say what you want including this to why is this somehow not a restriction on time place and manner if the others were because again i come back to the fact that this is a burden on the noncommercial aspect of the mark excuse me how do you go scope back to if we can and the earlier part of justice briar's question ten fifty two has two components you can't disparag or falsely suggest a connection with a person institution are you challenging or saying that the second part of ten fifty two falsely suggests a connection is unconstitutional as well  that's not the question before this court i don't put your argument earlier was that if someone slanders or libels an individual by saying trump before he was a public figure trump is a thief and that becomes their trademark their even if they go to court and prove that that's a libel or slander that trademark which still exists and would be capable of use because otherwise cancelling it would be an abridgment of the first amendment i believe that's correct that makes them mr common don't you think that congress could deny a trademark registration for something that fit within the narrow historically recognized category of libel and slander which had never been regarded as having first amendment protection i think the outer limit of the protection here or the categories of historically prescribe speech that would include threats it would include fraud things such as that that's not the case obviously with the mark that we're using here but one of the  things mr khan of the troubles me about this case is that it's not quite as simple as just saying well here's a government program and the government is discriminating on the basis of viewpoint because there are aspects of this program that seem like government speech itself maybe not quite that but something approaching that which is the program says that anything that's registered the government publishes in its own publication the government sends to foreign countries again in its own publication so the whole program is geared in such a way that individual markets that are registered end up being in i doubt anybody would say ascribe them to the government but the government republish is them communicates them and so forth and doesn't that aspect of the program give the government greater leeway here than it would in a typical program in which no government speech itself is involved it does not the register simply serves as a recreation of the marks that the government has approved according to the statutory criteria this is in no way different than copyright registration pattern registration marriage place registration car registrations any other kind of typical government registrations that are simply by the serial the government is not speaking it's not it's message the control over the creation and design of the markets retained at all times by the owner there is no history here of the government using marx to speak through private more calder's and there's no association with  licensed texas license vanity license plate and they said they were doing with it because their confederate flag yeah that was a specific the government speech case that's not our case here this is not a government i government property controlled by the government as to designing content and so on it's in fact it's exactly the opposite you know you've said as you've said several times that the problem is that the government is burdening noncommercial the noncommercial aspects of the trademark but it seems to me that that's an awfully laurie line a lot of these trademarks promote the commercial aspect in fact by disparaging other groups and they figure that it's a way to promote sales how do you tell the difference between the commercial aspect of the trademark in the noncommercial aspect the commercial aspect is that part of the market simply identifies the source of the good or service in question in the case of the slants there's another component that being the noncommercial which communicates the political and social message of asian pride this is akin to just prior before talking about the in inherent advertisement that can take place bands don't exist without names and and people associate the music with the band name of the band name with the music that they perform so that that is where the noncommercial  aspect of the speech comes in and to the extent that the government is burdening it by denying registration because they believe that it it conveys a negative view that's unconstitutional if you want to say that trade mark law  just like it's a public park of the public park a public form of the classic example where you can say anything you want we treat this we treat trademarks just like we treat other things the other i mean i'll call them content distinctions because they are the trademark law just makes i mean section two prohibits the registration of any mark that falsely suggestive of a connection with persons likely to cause confusion descriptive mis descriptive functional a geographic indication for a wine or spirits government insignia a living person's name portrait or signature you couldn't make any of those distinctions and in a in a public park and yet of course you can make them in trademark law can't you all of those other distinctions or viewpoint neutral and advance the commercial objectives of the lanham act in terms of reducing consumer can for these might be viewpoint neutral but they're certainly not content neutral and yet we would i mean i think that a challenge to many of these would fall flat on what basis because like how is trademark law supposed to function unless it can make these kinds of distinctions and i'm suggesting that those those sections would survive saying well ok if those would survive then this is not a public park because those would not survive in a public park agree there's something different here in other words that this is coming up in the context of a government program well to provide certain benefits that the government doesn't have to provide it all the the point here is that the government program at least the goals of the lanham act or to reduce consumer confusion and that is a legitimate interest that the government has and these the these factors under ten fifty to advance that purpose i come back to the chief justice is question i really have difficulty separating the expressive from the commercial aspect of the trademark let me give you an example i think that nike's phrase just do it is a registered trademark now is that commercial where is that expressive it is both of the two are intertwined they're just like at the slant when you have the source identifier that is inextricably intertwined with the message that the a more rigorous task than we would apply to the commercial part understand your question do you think that viewpoint discrimination is always prohibited in commercial speech for example could the government say maybe it already has said that a manufacturer of cigarettes could not place on a package of cigarettes great for your health don't believe this the surgeon general viewpoint discrimination is prohibited in commercial speech no question of th form of a property right a certain form it's a trademark it's as if through government we created a certain kind of physical property right that certain people could dedicate a small part of their houses or bland to peaceful grove and in peaceful grove you write messages but peaceful messages and above all you don't write messages that will provoke others to violence or bad feelings ok anything wrong with that i can't think of anything wrong with that there are thousands of places where they can express hostile feelings it's just in this tiny place one quarter of an acre that you yourself have chosen to take advantage of that you can't because it will destroy the purpose it will destroy the purpose of peaceful go that's why i asked my question to what extent does interfering with viewpoints here serve a trademark related purpose as we can see how in peaceful grove or in shakespeare the message is that we were talking about did harm the government purpose and here they are saying similarly disparaging messages get in the way of the objective of this program which  identify the source of that i think is what i heard that what i'd like you to think about and respond to disparaging messages in trademark do not interfere with the source they simply control the othe r component of the message that the slants is is the band it's clearly identified so the identification of the source of the service the music in question it's search by the mark what the government objects to is the other message it's the other message i understand that but now your answer ok i've got your answer and now your other answers were worrying me because what's worrying me is i accept what you just said suppose i did and i suddenly saying no peaceful grove no shakespeare celebration no normal restrictions on normal restrictions no function you know it's functional can't have functional things in a trademark da da da all the ones we read if i buy into your answer just that you just gave have i suddenly opened the door to striking down all those things no i don't think so because why not because the purpose as as as you said your hon trying to advance the goal of source identification and if the market or wishes to include a component in the market to somehow advertise the good the service to convey a different message that doesn't get in the way of the source identification and only seems to me that you're defining the government program differently than the government would i think they're suggesting that there's more to their program than just source identification that is not clear at all in the lanham act in fact the only purpose is a lot of act as identified by this court and parking flaw in this was a citation to i believe the the senate report was the reduction of consumer confusion in the protection of the good will of the mark holder there was no suggestion that this was a well we heard a politeness statute well we heard from mr stewart that they thought the disparagement aspect would distract from the commercial identification i think that's what he said yeah you're saying that that's not really their purpose or well i'll say that that's nowhere in the legislative history and it's nowhere in the legislation itself i mean that seems to be pulled out of thin air by the government who again in their brief talks about if the no for the questions thank you counsel thank you mr stewart two minutes thank you mr chief justice let me make three quick points mr connell has said that the government program that the government registration program regulates only the expressive and not the commercial aspect of the mark and i think that's getting it exactly backwards the mr ham wants to do two things with art the slant he wants to use the markham self in relation to his band and he wants to be able to sue other people who use it in a way that would cause him commercial harm and an i love registration affects only the second thing it places no restrictions on his ability to use the mark it may limit the remedies that are available for infringement but that's entirely regulating the commercial aspects of the conduct that the second thing is mr connell's position clearly is that the test for constitutionality of registration condition is could the government buy on the speech altogether and putting that in place would eviscerate the trademark registration program most obviously as as justice kagan has pointed out there are a lot of other content based  registration criteria and in addition i'd point out one of the prerequisites to registration is that you'd be using the mark in commerce if this were truly a suppression of speech we'd ask by what authority could the government make the right to speak contention providing goods and services in commerce finally justice kagan you mentioned commercial speech and there is an important communicate government communicative acts that to this program the preparation of the principle register is not just an ancillary consequence this program it's the whole point to provide a list of trademarks so other people know what has been approved what's off limits and the consequence of mr connell's position is that the government would have to place on the principle register communicate to foreign countries the violence racial epithets insulting caricatures of venerated religious figures that the test for whether the government has to do that can't be coextensive with the test for whether private people can engage in that form of expression  if you really think that that speech can be restricted by the government on the ground that foreign countries may object to it could could the government do that with copyright i think an awful lot of things are copyrighted in this country that are deeply offensive to some foreign countries and yet the f b i enforces the copyright laws i would agree that with the copyright is different it's historically played a far more fundamental role in free expression th trademark law has played but the government at the very least has a significant interest in not incorporating into its own communications words and symbols that the public in foreign countries will find offensive thank you counsel