with administrative law with normative administrative law the question of whether or not an administrative legal decision may be made without proper application actions of the response office actions made on examination made it very clear that the applicant as much as invited the examining attorney to specify what sort of evidence the examining attorney would need to consider the application fee for him the actual application under consideration in order to make a determination with respect to the use of the market at that time and the meaning of the market not respect to dictionaries dictionary definitions that were cherry picked not respect to well obscure reference work but the evidence of years in other words the use of the mark has in the past made what is deemed under the standards of the p t o to be improper use under section two way it is entirely plausible that that applicant might learn the lesson might say inherently not which is which is not inherently disparaging there are certain words that can never be redeemed because they they have no place in the english language for purposes of section two way but a word like slants which doesn't have a place problem and or to requests from the applicant given your history what can you show me or to go on the internet afresh and say have gone to your website and i see a problem none of that happened it said what we had was what you're the guy from last time and the problem with that is there's no limit to it there's a market case for the rest outside me having learned a lesson why didn't the applicant learn the lesson that it might be useful to bring in information to show as he argu where the first amendment argument is an issue your trademark register registrant really sought to use this very much as a form which he was the argument of my client in the in the registration application that is not on appeal that they are getting only first amendment argument in our submission is that to what the first amendment argument is the is the more because the broader argument that an applicant in this situation is really at sea in understanding what on earth he is supposed to do looking at the statue to look at the precedents are looking at the registrations that are in the better register he really has very little guidance in the year two thousand and fourteen to understand what is and what is not permitted if you wished to take the re appropriation ta he's certainly is able to do so if he is if he wants to reappropriate slurs that refer to sexual orientation if however you wish to reprogram stars that have to do with ethnic identity that's clearly a no no i would just say no i would agree with that i would agree with that and that is a reason to say i i i would agree that this court has every opportunity to to make the first amendment there is no question that an applicant that with that a person wishing to express himself through the use of speech it's limitation as commercial speech or not commercial speech is an established part of yours prudence as well government's ability to limit that speech has also in many cont acknowledged trademark registration is a privilege but there is a point in which when government acts as this act is selective in selecting which kind of speech will be approved it acts as a sensor limiting monopoly limit it limiting limiting and sort of monopoly on speech obscene scandalous offensive these are terms that in almost any other area of law we would we would  government has virtually no business exercising control it is in the year twenty fourteen considering the range of topics that government considers itself  the court the two part test for disparagement requires determining first what the likely meaning of the mark is in the context in which it's used and second in that context is it disparaging to the reference group and i want to pick up on the point of to start with the the context in which it is used because mr tam is arguing that he submitted specimens in this application that are different from the specimens he had submitted earlier but the board is required to look at the context in which the mark is used not just the specimens that the applicant submit as they are convenient to that purpose so in this case the examining attorney and the board's looked at the  the applicant's web site and statements that he has made in the public about the way he intends to use the mark on the second part of the test substantial evidence shows that the word referring to people of asian descent is fair jing was there a little bit of a concern that the actual way that the search was done for purposes of seeing how the word was used was sort of invited to respond well to the extent there is any concern mr tam hasn't submitted any evidence to show that that a different meaning is that likely meaning here the only evidence in the in the record here is that the dictionary definitions uniformly when they're when in the definitions that are referring to people at all discuss those definitions as disparaging or offensive so so  even if the examiners even if there was a problem with the examiners search terms there's just no evidence to the contrary in this case and on top of that it may have been inelegant but the examiners tend to find the definitions that are referring to people to read out the definitions that are clearly in applicable in this case he had to have some way to do that i mean what you put planned in the examining attorney had to take the likely meaning and in picking a likely meaning he looked to the evidence of the use in the market place here which is which shows that the applicant intended to use the mark  prescribed by the by the registering or refusing to register a mark and that's what this court has decided repeatedly we decided nine hundred eighty one of the three but it was a relatively minor and unexplored point in mcginley and it's it may give me a disgusted susan pretty significantly the the extent of the benefits that are and i have no issues with that argument i'm going now to whether there is merit to the argument to the contrary such that we should take it in thinking reconsider the two sentences in the gangly issue thirty five years ago and possibly analyze them under what has been the men evolution of supreme court jurisprudence on the slate so you may not be prepared to discuss with me and you can say so and then i'll let you sit down without further question if you are completely unprepared to discuss with me the evolution of that same court doctrine i'll let you know if you're opening game for it because it would help leave aside whether i think there's a need to take this piece and then i'd love to hear your thoughts on it but i will accept the invitation to one question do you think that a trademark is actually speech or is it more like expressive well let's see the analysis in mcginley well terse explains that no speech is prescribe by the refusal to register a mark so the so there are still common law rights in the trademark to enforce it and there certainly still the ability to use the mark anywhere an applicant w will use them don't talk i don't see any discussion ever of government in permits for government funding or otherwise in the legislative history but i see quite clearly statements that suggest they don't want those marks to be  government on the benefits issue and which held that the government is allowed to and in every single one of those it is only because the benefit at issue fell under the spending clause of the united states constitution which allowed for the government to condition benefits in the interests of general welfare is the lanham act under the federal spending power of the us constitution and i would point again to you about mckinley's analysis of benefits i asked you to land on that is a statute that was inactive by congress pursuant to its spending power under the spending clause of the united states constitution i'm not sure  the registration of the market including the responsibilities it says the responsibilities of the government with respect to a mark are not ended once the registration is granted the benefits of registration in part with government and assistance include public notice of the mark in an official government publication and an official records which are distributed throughout the world maintenance of permanent public records concerning the mark of ale ability of the customs service for blocking importation of infringing goods access to federal courts where there is a presumption of of the registration notices to the registrant concerning the minutes of the registration and to some extent direct government protection of the mark in that the p t o searches its records and refuses refuses registrations to others of conflicting marks and that was all just to show there are numerous other resources going into the you mean like when the government has to be involved in force never like the court that's right ok so when the government licenses somebody more regularly for issues and zoning regulation or anything else of that nature none of which have anything to do with spending by and large are the government courts nonetheless implicated in lawsuits involving whether or not and someone is correctly licensed reaching their license like a medical license for example  individual examiners you know everything is in the eye of the beholder individual examiners get to say what they think is analysts or what they think might offend someone and they can do things like maybe manipulate their searches for purposes of making their primary cas is that the kind of argument that can be made in the context of the subpoena for does it have to be made under the a p a i think that kind of argument could be made in this appeal and i don't think that argument has much sway because well for one thing there's a very clear test for how to determine if a if a mark is disparaging which which involves finding evidence of the likely meaning in context and then it is in finding whether that likely meaning is disparaging to the reference group and each case did does depend on the evidence in that case and so for e that the applicant came forth with saying that the meaning had changed since the the time that the that the evidence came from that they damning attorneys evidence came from and so that mark with registered even though it had initially been subject to or futile on the same basis so would you agree that it's not good enough to just say well just because we might have made a mistake somewhere else that that doesn't help you here the better argument actually is that you have to look at the analysis that was made somewhere else and that if the facts are different then the results could be different but that doesn't mean that the test isn't clear enough for an examiner to follow that's exactly right because some of the cases that you cite seem to just say just because we may have screwed up somewhere else or the p t o may have screwed up somewhere else doesn't mean that that matters right that some of the candidate would make in that but but i think you're right that the stronger argument is that there that they are all decided on their own facts and and also to the extent any party thinks that the that the the right evidence wasn't brought fort evidence and i think that your bike example is a good one because in that particular case there was substantial evidence that showed that it was a generational thing the argument here is that this i a generational thing but there was no evidence offered by the applicant to that effect other than his own statements right that's right that's right and he certainly could have come forth with evidence that the the likely meaning to a substantial composite of the reference group had dogs with dogs in that case the generational case the african was responding to evidence here here the apple the act of the examining of attorney didn't bother to present any evidence he but wasn't there evidence that set the very use of this bad name in the context that that the mark was designed to be used and had resulted in substantial controversy has resulted in this individual's your client being pulled from the podium in a particular new programs or asian american there was evidence from another application that that for that  what if that same web search i did done a new for this examination would have perhaps demonstrated that subsequent public commentary have been to the exact contrary so you're so we're supposed to assume that that and today someone expresses serious concern about the name of them are like you file your are the name that's been used and you file it tomorrow that we're not allowed to look at what someone getting at it is a substantive right is not really a procedural right and that's why mcginley cannot merely be waves that are alive as the end of the discussion trademark rights do have a direct relevance a direct relation to speech is address and people people this is rock bands don't always refer to people many rock bands black flag social distortion and i know that i am a dating myself tears for fears counting crows verified frankie goes to hollywood the