we'll hear argument first this morning in case eighteen three zero two yen cooper says brunetti mr stewart thank you mr chief justice and may it please the court the latin acts ban on federal registration of scandalous trademarks is not a restriction on speech valid condition on participation in a federal program on its face and as applied here the provision has cut its viewpoint neutral the scandalous marks provision is one of many content based criteria for federal trademark registration and consideration of the marks contact to decide wheels tell me how you're defining the scandalous mark and from your brief i thought you were giving it is different definition has been used by the agency for a while well the t that adjectives that have sometimes been used as synonyms for scandalous by the agency are terms like shocking disgrace all offensive and disreputable i think you use all of those sensitive you run head on to expand i think one sense in which we have that then i think this is always been at the core of the prohibition but i think tam has led us to focus more on limiting the scope of those adjectives that is on their place those adjectives could encompass material that is offensive or shocking because of the outrageous abuse that it expresses and we know from town that you point discussed in point discrimination it's not a valid basis for denial of federal registration of a trademark so i think it has always been would be they would find it shocking i think i think not i think there are certainly some segments of society that are more likely to find particular marks are shocking than others i the p t o its initial determination was that this mar would be perceived by a substantial segment of the pub public as the equivalent of the profane past participle form of a well known word of profanity and perhaps the parody magic perfect word of profanity in our one way or another it's always subjective ike i can deal with a limiting principle that has its own substance like obscenity i would i would agree that if you just looked at the words like shocking and often sort of on their face and gave them their ordinary meanings that they could easily encompass material that was shocking because it expressed an outrageous point of view or a point of view that most member stewart if you agree with that i mean what are we supposed to be doing here are we supposed to be looking at the statutory words we supposed to be looking at the fuller standard that the federal circuit gave to explain those words or are we supposed to be looking just at your commitments as to what you're doing going forward i mean if you take the statutory words they're very broad they do include things that are offensive because of the ideas they express so why isn't that just the end of the matter and if if if congress wants to pass a statute that's narrow where that's focused on garrity or profanity then congress can do that i think typically the court would attempt to construe a federal statute in a way that would render it constitutional rather than unconstitutional and i think the scandalous mark provision is at the very least susceptible of a reading that would render it constitutional if the focus is on profanity the whole garrity and we're not just talking about words we're also talking about images that trademarks can include images as well as words and if the scandalous marks provision were struck down then applicants would be free to obtain registration of sexually explicit images year this is a facial challenge right that's correct so it's not simply enough to determine that this particular trademark is scandalous right that's that's correct i didn't understand you in your brief to make much of an argument about that well in part in part because  if you accept the p t o s initial determination that this mark would be perceived as the equivalent of the past participle form of the parody batak profane word it in our culture once you accept that it's hard to see what would be covered if this is not but i certainly we certainly agree with your point that it's a facial challenge the question is whether it is susceptible of constitutional application we think that mr brunetti as mark was under the weather the provision itself is susceptible of constitutional application right in this provision covers obscenity it would cover obscenity and if that's what would happen if we agreed with the respondents would the whole provision be struck down  roadside the respondents might say that the provision on its face is so substantial that if the only legitimate applications were to obscene materials the respondent might say it is so substantially broad overbroad on its face cover so much more than that that it can't be sustained these you know if this is the entire provision is struck down the government would not be able to restrict trademarks that are obscene weak i mean the government could restrict without regard to federal registration the government could restrict the sale of goods and commerce that can that on which were employees and obscene trademarks or the mailing of such goods i think for that reason to limit it in that fashion it wouldn't really accomplish much we agree that it should be limited so that it isn't viewpoint discriminatory but to limit it to obscene words both would render the whole virtual and all of a and there's also no good reason that the standard for determining whether a particular market can be placed on goods that are out in the public marketplace should be the same as the standard for determining whether the goods can be stepped through the mail to a willing buyer let me just be an ally more precise if you lose this case do you think the trademark office would be able to deny registration to marks on the grounds that they are obscene well i don't i think there are certainly ways and if the court struck down the statute on its face on the ground that it was substantially overbroad then no i don't think that there is any other provision that the of the trademark at exactly what to mark's that are offensive shocking to a substantial segment of the public because of their mode of expression independent of any views that they may express  if that are meant to attract a particular market and if we concentrate on that market issue in pacifica that's a parody magic example of profane copyrightable expression now our society has reached a good accommodation where people who find the carlin monologue funny or thought provoking can b the c d s they can buy the d v d s when carlin was alive they could watch live performances all that can be done without forcing the profanity upon anybody who finds it a plan this is the standard that you're looking to at bottom and this is framed by justice ginsburg's question is at what is congress interest is it does have an independent interest and not having the federal government associated with certain words or is it just an interest in following whatever the population thinks is offensive or scandalous or in morrow at a particular point in time it is somehow not necessarily the same it is some of both but with respect to the second interest we would emphasize the interest is in protecting unwilling viewers from material that they find offensive and that the point i was making about the carlin monologue is weak there are ways in which that can be made readily available to people who want to see it or who want to listen to it without forcing it upon others trademarks can't work that way because the whole point of a trademark is to serve as a source identifier you know i don't see how the second interest is implicated much at all because this this word and all sorts of other words can be used in connection with the sale of goods even if you're right they just can't be registered trademark so why isn't it exclusively the first interest well it creation to avoid the creation of artificial incentives to its use by providing the benefits that are associated with that trademark registration and the why me resisting justice alito why can't the government's interest not being associated with sexually explicit activity or words the enough we think that it is enough but we don't want to abandon the first interest either because we w curious because justice alito is right trademarks can be used with or without registration you get certain statutory benefits which is part of the or government program argument right all right but but i'm i'm just not quite sure why that's more compelling for you i've been defending it in a way that suggests that i'm missing something i wouldn't say that it's more compelling but i would say that the government has an independent interest in protecting unwilling viewers to the extent change well we i mean we do have in a traditional subsidy program for instance if the government was handing out grants for aspiring artists grants to help them create art the government obviously couldn't prohibit prohibit artists from creating a vulgar profane art art that a substantial segment of the population would find offensive but it might still have an interest in encouraging the creation of ark that would be  accessible and welcome to all segments of the community and including to the children and again the point i was making about source identifiers is that the reason that it's not feasible to restrict source i inspection of source identifiers to people who want the product is source identifiers are they're not the expression that you get what you have decided to buy the product they are one of the clues that you look out in deciding whether to buy the product and so a trade mart that you only saw after you had bought the package and opened it would feel entirely to serve its intended purpose that the federal registration program is intended to encourage and incentivize the use of distinctive words and symbols that will be made available for inspection by prospective buyers had members of excuse me how do you deal with the problem of the erratic or inconsistent enforcement which seems inevitable with a test of the kind you're articulat well i think some of it is some of it will be resolved by tyan that is to the extent that the p t o had previously taken into account whether the views expressed were shocking or offensive that that won't be done any longer the second thing i would say is and more leeway is given in situations in terms of vagueness in situations where the government is not prohibiting speech but is simply declining to provide a benefit here the consequence of the determination that mr scandalous was not that he was subjected to any penalty he could continue to market his goods and commerce with the trade market but if i understand what you're saying mr stewart you're essentially saying we should uphold this statute on the basis of various commitments that the government is now making to apply this statute to only a small subset of the things that it could apply to if you look at it on its face as to just the words used and that's a strange thing for us to do isn't it to basically you know take your commitment that look these are very broad words but we're going to pretend that they say something much narrower than they do well i think even up to this point that the core of the provision is the p t o has applied it has been profane polgar vulgar words sexually explicit images offensive excretory references things that were regarded as offensive prove prohibit registration of marks that are identical to a an existing mark as you say it prohibits registration of marks that are confusingly similar to existing marks that's it's logically possible to have two you look at the seven words at the end of the red briefs and there are shocking numbers of ones granted and ones refused to do look remarkably similar and how is a reasonable citizen supposed to know what notice do they have about how the government's going to treat their mark well i think one of the i think the notice is in part based on the p t o decisions but obviously whatever the court says i upheld the provision the court can say what it wants to say about the homophobia and we can fix your problem for you i got that but but but the government presumably the p t o supposed to be doing this itself and without our inner interference and  it's allowed a lot of marks with these words and has refused a lot of marks without these words i could not myself see a rational line through that chart at the end of the read brief is there one that the government's aware of i think in part the p t o looks to context in a lot of the examples that are given of confusion of similar marks one of which is refuse registration one of which is granted registration are marks in which people will use a slightly different combination of letters that phonetically evokes and existing profane words so you have marks that use the letters p h u c and the p t o will in part examine context in order to determine that mark intended it i don't want to look i don't want to go through the examples i really don't want to do that but i can come up with several that are granted that that have had phonetics along the lines you described in a couple that have been denied and what's the rational line how is a person a person who wants to get a mark supposed to tell a good p t o is going to do is a flip of the coin i guess the two things i would say are first the p t o looks to context and so with a phonetic word like the one i've described appears in a sentence or in a phrase in which the profane word would commonly appear the p t o is more likely to conclude that a substantial segment of the public will regard that as the equivalent of the profane mark because it is being used in the way that the profane bart lescott often used if if this is held to be unconstitutional what is going to happen with whatever list of really dirty words still be the ones who have these i mean there are other barriers to trademark registration that is it's not the case that in the non scandalous word could be trademarked it has to be the sort of word of the sort of phrase if it's if it's verbal that consumers would perceive as identifying the source and so just short phrases or slogans are often refused registration on the grounds that they would be seen by consumers as communicating a thought not as  identifying the source of goods and there is also the requirement that people who want to register their trademarks be using the mark in commerce a person can't simply register a mark and sit back and wait for people to pay license fees in order to be people who want to actually used in commerce to pay license fees it is a prerequisite that they be using the parking commerce so there are some limitations but yes you would think the natural result of allowing these marks to be registered is that there would be an increased flow of registration applications and again this is not just for words this is for the visual depictions that are intended to signify the source of a product about racial slurs i think in general racial slurs are taken off the table by tan because it is that because look into a little and there are certain ones that have exactly the same physiological effect on a person is as the word we're using here and there is a physiological effect i there is a stored in different place in the brain that leads to a retention of the word there are lots of physiological effects with very few words it's not too hard i think of a racial slur that has exactly the same effect agreed i think there is one racial slur in particular that would be a close call even under our basic framework of you can't deny registration based on the views expressed but you can deny it based on the vote of expression you could say this particular racial slur is considered uniquely offensive even as compared to other races speech and therefore it could be denied registration on the grounds that it was an impermissible mode of expressing a racial racist thought on the other hand you could argue at bottom the reason that this slur is regarded as so offensive is that it history has historically been linked to racist attitudes and for that reason it all comes down to viewpoint we think that would be a authentically close case even under the framework that we've established but again there's there's no sense in which the mark that is at issue here could be considered offensive because of any view it as expressed the real the really the argument on the other side is more it isn't offensive at all not it is offensive because it is perceived as communicating a particular message but about mr brun his argument that the use of the word expresses a viewpoint precisely because of its offensiveness you know it's edgy it expresses a nonconformist attitude on that i don't deny that that might be a reason that people would use profanity in certain circumstances but i think if that were treated as a form of viewpoint discrimination it would really cast doubt on a lot of other practices for example we've we've indicated in in our brief that under mr burnett is theory if the government had if a you know civil government operated buses and rented out advertising on the buses but precluded the use of profanity on the advertisements if they applicant could say as mr brunetti is saying i want to use profanity because it communicates on an edgy message and i think the government legitimately should be able to say that may or may not be so but we don't want profanity on our buses where they're visible to i'm consenting adults and children we don't want that word on our buses regardless of the message that you intend to convey and we think that would be sufficient to make the provision viewpoint neutral  trademark they could have sought donations from whomever they wanted in cornelius and yet we talked and we held that the list of organizations was before and you haven't argued very forcefully that this is a limited public forum why i mean i think i think we don't regard it as a limited public forum because the registration program gives significant commercial benefits to registrants but getting the mark on the p t o s principle or supplemental register is not the way in which mr brunetti would want to communicate with his potential customers that the way in which he would communicate with his potential customers is by advertisements promotional materials placing the goods on shell but that's not true it puts the world on notice his mark it doesn't it and it gives him the legal protections that come from that notice without it he can't inforce any federal rights so he needs registration to be able to do what he wants to do and we think essentially the same legal standard should apply to the restrictions at issue here as would apply to a limited public forum our only point the reason we haven't argued that it actually is a limited public forum is that the register communicates not so much with mr brunett customers but with potential infringers people who might otherwise be tempted to use the same mark on their goods now a couple of other things that i'd like to say about the registration program you're right that people pay a fee to register but the p t o still devote substantial resources to examining the trademarks to publishing them there are periodic there is a periodic reexamination to see whether the the applicant is still using the mark in commerce admit the commercial advantages that registrants get are directly attributable to the efforts that p t o has put in for example the reason that it makes sense to treat trademark registration as crime if a ship evidence of the trademarks validity and the registrants ownership is that the p t o exit has examined the materials and has made that determination the reason it makes sense for the trademark to become incontestable after five years is that the p t o has published the trademark anyone who thinks that there might be a problem with it has an opportunity to see that the mark has been claimed and to raise an objection and so if the person doesn't so with that doesn't do so within five years it's fair to treat the mark as incontestable if i may i'd like to reserve the balance of my time thank you counsel mr summer mr mr chief justice and may please the court there's two important points if we may first the government does not defend the plain languages statute nor does it defend how it's been consistently interpreted for the last seventy years number think that the pros are more there's no simply no way to make a real a sensible didst determination between those that come in and those must stay out there are books and son to reports and so forth i don't know how i haven't seen them contested that say take six or seven words and today in the past they might have been religious but today they do include the word to dish or when they do include racial slurs of certain words and they have a different physiological effect on the brain they're stored in a different place they make a different in the conductivity of your skin which shows emotion and above all they are remembered and therefore take if it's in a context where it has that effect for most people why isn't that a pretty clear distinction from what you're talking about and why doesn't the government have a right to say this is a commercial matter purely commercial it is a totally free to use any word you want right next to this registered trademark we just don't want to be associated with it well if you're asking about the government association the tam court dealt with that or read i wasn't i was primarily about there is a way of distinguishing these matters i think well i wouldn't ask you if i were certain of you well if you're suggesting that there's a content neutral way of deciding which marks are too scandalous to register by doing a task of the test on the body  have to do just not to talk you know i mean most people know what words we're talking about and of course you could come in and show they're all wrong on this but they probably aren't but we had that avoids the issue about whether this is viewpoint and even if it's not viewpoint still content so if this statute clearly covers the government does not seem to dispute at least many or some of the marks that are both granted refused to express a viewpoint then the statute is over ideas that are offensive or scandalous or immoral or anything like that it's just going to focus on modes of speech and essentially what that means let's just is it won't allow trademarks that are profane  well there first i want you point based yes because if you want to have a statute that prevents profanity sanity that would be constitutional in fact i'd like to sort of answer one of the previous questions is even if the would really qualify as as obscene but but let's say that the government has a real interest in preventing a certain kind of just profanity will guarantee nothing to do with the viewpoints of speakers but something to do with the way they express those points i guess that that a little bit stacks the deck in terms of of the question but why would that be viewpoint based well if you're talking about the mode of expression argument that is a misreading of cohen because cohn could have said on the draft and that's what the government says he should have done and if he said something else he should have been arrested in his conviction should have been affirmed but we know this conviction was reversed so the motive suppression argument isn't correct well it's untrue it's a column rejected in that context where somebody was being punished for for saying the words but it is a little isn't it is exactly the same here i think the government is not saying you can't use th phrase this word we just won't register it well if you're basically the question seems to be is can we prevent the seven dirty words if the government had a list of seven dirty words would that be constitutional and the answer is do we not for two reasons first because you have seen in the briefs the marks that have the f word and racism and cancer those clearly expressed viewpoints and the second thing is even if you had a list of five words that wouldn't preclude mr burnett is mark because it isn't exactly one of the come on or you know come on well i agree serious we know what you know what he's trying to say so we even have the seven dirty words and anything that you know any clever way of trying to say it in a different way using different letters but your position is that would be unconstitutional i think so if congress were to pass that we'd be here again in a few years to determine whether that's true your basic point in this is we're having a harder time i think we're in a period where swear words and that's what they are swear words where their content is changing so that younger people feel that these racial slurs are just as bad if not worse so suppose that you can pick that out sometimes it will be used to convey a message i grant you that out but this is business and it's not only business it is business or the puzzle function of identifying the manufacturer and it is the kind of use that doesn't forbid anybody from using that word except to get registration and you can put it right next to it so it's very different than karl it's very different now i want your response to as much of this question as you can give me i'm so i have done truthfully know where to start it i didn't think you necessarily would because there are several things mixed up there and i want in my mind this straightened out well i i think you agree that it's a viewpoint because i'm not looking at from the view no i don't agree with that you point i think that very often the word involved in your case and the racial slur is not viewpoint it is used to insult somebody rather like fighting words or it used to call attention to yourself that's the purpose of  authority and that's a viewpoint i don't want to distract you at but that's completely circular it's like saying you know my protest is that i want to use words prohibited by you know not given trademark protection and because i have th viewpoint you have to give them trademark protection that's totally circular well if we look at we're doing the have a facial challenge here so the question is is if that overbroad and it doesn't matter if mr burnett is marked should be asking about that because i think i understand the argument but i am what i am worried about is the viewpoint as you say but i'm also worried about the racial slur we all know about ok suddenly in certain places in the united states appearing as a product name appearing on every bus routes advertised appearing on newsstands in times square where it wouldn't be but it might be in some of the city and  were children and others see it now that's the interest that they're talking about at the same time as they point out this doesn't stop anybody from saying it does stop them from claiming it's a registered trademark e products source recognized by the government now that's what i'd like you to deal with directly well just granting federal registration doesn't require that anyone use a trademark and my client's goods are not going to be a target and wal mart well i'm not sure that's an answer to justice parse question why isn't it a government benefit and why can't the people choose to withhold the benefit on the basis that there are certain words that are profane and that we as a matter of civility in our culture would like to see less of rather than more of and you can use you're free to use them colin can have his teacher but we're not going to trademark them and we've held just last year that a patent is a public benefit that can be withdrawn without a judge why isn't this also similarly a public benefit rather than a private right well i would respond with forty four liquor mart because the government doesn't have to grant the benefit for example the government doesn't have a fire department but it can't go to a church and say we're not going to protect your church unless you drop your century of beliefs because we find that offensive and i people to declare their love in their marriage license we just asked for their name their address and who were the witnesses and where the marriage happened saying things with the deed to our house we don't permit you to have commercial advertisements in that d telling people how wonderful your houses we need some mountains the day the purchase price and that's it so why can't the government just like with the patent say we will give you this benefit should these things but not others well we don't want propane words no matter how you use them well i think there's whether it's pro or con any idea we don't want vulgar profane sexually explicit or other words now we've got a separate problem with the lack of consistent application by the government will put that aside but let's deal with the basic question why can't the government say no we're not going to give you space on our public registry for words that we find are not acceptable well i think you explain why it's not a public forum it's not a form at all and in fact would the government be allowed to refuse registration of ownership of property because it's bought by a church with a name that's considered a threat so could the coast guard refuse to register  but it is going to be on people walking down through the mall and you know for parents who are trying to teach their children not to use those kinds of words they're going to look at that and say well look at that and then you know this little trademark thing it's a watch registered trademark they consequences beyond regardless of where the product is sold well i think that's where the government has to come conundrum because the government can it has a meaning even if it's only intermediate scrutiny doesn't have a compelling interest if it can't stop people from using it and so people mr burnett he can still use his mark regardless of whether it's right i know but the whole point is that the federal registration increases the exposure when you're going to have more commercial the theory anywhere is you're going to have more commercial opportunities in markets and if you do use if you are under the federal registration system and that's the government's argument you can do whatever you want with it you're just not going to get the benefit of the government's participation in that well we can deny registration and that will prevent them from what what is your inserted justice briar's comment that insult insulting someone is not a viewpoint well i would agree that all the traditional whatever reasons it doesn't have this tremendous retentive power that would lead someone to try as quickly as possible to get his brand registered with that name in order to grab attention and there are such people and that is not a word in tam that is not that kind of a word it was used ironically it was used ironically position that it cannot refuse any racial slur and in fact is approving them but even before ten am there were variations of that racial slur registered what about mr stuart's comment about public buses ad space that he is young men who want to be rebels and this is how they do it well that may be the audience he's targeting but that's not the on only audience he reaches agreed well i mean but that sort of gets to the government interest in whether or not it wants of discussion in our diverse society that includes for example that everything the whole the i'm sorry go ahead to the you know the lowest common denominator the most squeamish among us you know but the point is this is a different type of program the whole point of this program is to regulate content you have to look at it and decide is it for example functional or descriptive in which case it doesn't get protection it's something that's been granted before so it doesn't get protection the act that it's it is i concede it's completely content based but it's the nature of the program well it's not a program it's a registration scheme and it is not content based on most grounds likelihood of confusion deals and deception cause deals with confusion and fraud basically which you would agree that there are there content restrictions would entail you know the flag one or you know there are a number yeah well i think that a to b which deals with flags and symbols and to see with using people's names could be under certain circumstances raise constitutional issues i think too easy which deals with things that are trademarks because they're generic or functional i don't think that's called into question you think likelihood of confusion is not content based i determine whether something is likely to confuse without looking at the content of it well i would say not only content based but i'd also say that that is the traditional exception of preventing confusion big the whole point of refusing the new application is it's likely to be confused with the other one but you're actually not it's almost like a secondary meaning case like city or retton because you're looking at applied mark a and register mark b and you're not looking at the content that's really irrelevant you're only looking at the likelihood of confusion the similarity with respect to words and letters as opposed to images is there any combination of words or letters that you think key and be barred well i think that under scandalous some moral provision well i think constitutionally only obscenity can be barred and it would be what would you with respect words and letters what how would you define obscenity in this well i would just use militaristic california because the government basically is arguing here we should normal or versus california or modify it or create a new exception to the first amendment for balder so if picture i can see can be obscene and i could see if you had a long sentence that said some things which i don't need to give you an example but you can imagine a sentence or two that could be period interest and but that gets to the question of how do you draw a line between this and that well the court has been satisfied with the obscenity standard since one nine hundred seventy whatever of the millers of california and i think that's a example political marks has been refused as well as profanity and the government can't even get that right because it also mean profanity is borderline right and some of it might be ok for that for the government to regulate and some of it might not be th that's that invalid registration i'm not sure you answered my boss question so i want to get it one more time if we rule for you in this case as are principled ground on which we could distinguish public bus ad space definitely because that is a public forum and i think that the probably the clearest way is a public disruption but i do see a disruption because people see a word in all sudden and then their handle themselves and i don't understand that and there's also a case that involved were busted affirming standards for taking ads because the purpose of the bus program is revenue and i i think it's from massachusetts i can't remember the name of the case if you explain the destruction point more well there's no further questions i would simply say what about there may be words that are almost never used actually to express what the word literally means they and the words your client wants to use is number one on the list like ninety nine percent of the time or ninety five percent of the time it's not useful express what the word literally means it's just used to say i'm mad i want to get attention it's like shouting  cannot be distinguished on that ground and then if it doesn't express and you sort of viewpoint all it expresses is an emotion a way of expressing something well i think two responses one i think you've already decided that issue in town by you now and say holding a giving offense is viewpoint no i don't well tam involved the expression of an idea and and so there was viewpoint discrimination well because of a decision in town the provision in the hall is invalid and so all those racial slurs are coming out what exactly is the harm to the first amendment speech interest here i mean this is after all simply not forbidding use of any word in any place but you can't put a little are next to it it doesn't stop you the bread just ration non registration makes it more difficult for you later to prove a trademark case a trademark case being about the source of a product not about speech so what precisely is the harm i'm not saying there isn't one i just want to get your words of what the harm to the interests of the first amendment interest is because people who want to like mr burnett he who want to have a somewhat undefined viewpoint or people with a more defined viewpoint like in the cancer in the racism case viewpoint that they want to make and as the court already held in town denial of register if denial of registration in town is a sufficient burden to raise constitutional i understand cam that's why i wanted to get your articulation best words since the statute books of the federal government as well as every state are filled with prohibitions against saying all kinds of things in areas of commerce securities you name it i mean all kinds of things so what i want your words for is to distinguish this case in terms of harm to first amendment interest all i want is your phrase on that i would and i and i'm not saying you don't have one i just want to get it in my head i would say bernet he cannot express his viewpoint it could be someone could register that if they used it as a source of jennifer like as a label in the net that would be a source of down a far because one thing i think maybe is being confused is the use of the fraud isn't a trademark use that i guess i don't understand that a mark on the neck would be the trademark is the neck label and the statute says any word or symbol can be a trademark unless there's a disqualifying condition the trademarks also are more than just the neck label because people use it for political parties for charitable groups for providing information about candidates for public offices this is not trademarks and service marks are not purely commercial and registered well there's two questions are can they use that because all the words about descriptive use non trademark use apply so people can use let's say someone has the  word apple registered for clothing but they still someone else could use an app on the front of the clothing and so that's not trademark you and so all those rules that are the word that the chief asked you about you say can be registered i believe it's on the neck yes i believe i think i understand your difference but thank you thank you council for minutes mr stewart thank you mr chief justice i'd like to make one factual clarification and then three quick legal point first as to the p t o s current practice with respect to racial slurs in general the p t o if used as prohibiting the denial of registration for racial slurs but with respect to the single most offensive racial slur the p t o is currently holding in abeyance applications that incorporate that word pending this court's decision on to leave open the possibility that that word might be viewed as scandalous second with respect to cohen cohen simply illustrates the difference between a prohibition on speech and on content based restrictions on speech that are used to prohibit and content based criteria for government benefits the reason that the law in cohen was held to be invalid was that it entirely prohibited the use of the word in a public space here we're not doing that the second thing i wanted to say in this follows up on question from the chief justice and justice alito that content based distinctions are really  us in the registration program we look to see what the marks are descriptive whether they're generic whether they're confusingly similar to existing marks and often the words that we find to be descriptive generic confusingly similar are incorporated into what could be viewed as messages and in response to any allegation of viewpoint discrimination we would say we're not denying registration because it is being used to convey this message we're denying registration to because it is descriptive generic etc and we simply want to be able to follow the same approach with what respect to profanity profane words can be used as part of a larger message but we're not denying registration because of the message it's because of the profanity and the last thing i'd say about whether it matters obviously the reason mr pernetti cares about this enough to apply for federal trade registration and appeal to the federal circuit is that he believes that registration will convey commercial advantages and within the context of a program that is intended to facilitate and strengthen trademarks congress can legitimately decide that it wants to disinfect sent to vice the use of trademarks that substantial numbers of people would find offensive and to disassociate the government from those trademarks thank you thank you counsel cases submitted