because there are implications that have arisen in the cases and ham and blackhorse just this is addressed to both counsel i think would probably be interested since t m is still pending and here your arguments as to how this case should come they've done a lot of trademark and copyright work over the last several decades and no one seems to talk about the practical effects and the practical implications and i think that's what's most important and then in return the question came up is why men seem to assume that it would be unconstitutional to have this kind of limitation in the copyright context so how is the trademark context different and i submit it isn't one question raised by the judge as well in copyright is just automatic in trademark it's not  statues are essentially the same you called right application you checked the right boxes and unless there's some invalidating condition you can grant it in fact i found the copyright up patients have been refused because they're not there was an copyright  applications filed where they made me change my claim use different forms and in fact i've had trademark applications that file and go through the first thing i hear is i get a registration certificate so that's not a difference the difference is that because it up record of us customer service but i think that sort of the one of the more memorable ones there's no constructive nationwide you so mean without a federal registration any time anybody in the nation can start using one of those trade underdone don't that can continue to use that you can't use in to use of them without a registration under the intent to use registration you can get your constructed first you state when you file your application and then you can delay that at least a minimum of three years if you actually start use and your first use relates that you can only get that with the registration you can get that would come along rights no statutory damages no attorney's fees no presumption of ownership and  case if you have only come law a trademark you can only you have to show ownership and secondary meaning you can't as in the brief you can't use the trademark clearinghouse to you can't prevent others from using your trademark or new domain names you can't get internet web sites that are offering products like e bay evade the one exception almost the others will not cancel options for counter products without a paddle registration you can't get a security interest record with the so you can't borrow money you can get a u c c one that's in the individual states that service agnew way of getting who's going to lend real money on a trademark unless you have a registration and you can record that like banks do all the time with the p because i think the scandalous is broader than disparaging in fact i think some disparaging becomes scandalous because nowadays any kind of hate speech or racial slurs i think it's all scandalous that scandalous is broader than disparaging is much broader than just the name of a vast and i think certainly pam when i went is a government speech and i think you know the answer to that i think the government in their re what i hold up a hog in the mind of ice cream and you're not going to think oh the fellow comes to prove that the public is going to think calories and wonderful things and in fact virtually every item in a grocery store every item a walmart target virtually entire s economy is sold mcdonald's is sold under trademarks and no one thinks this program is approving all those things so they are in the circle of the registration is meaningless we know there's no prince will register per se in the  the physical sense and in fact really all that counts is the bundle of rights my client wants the bundle of rights he doesn't need the registration for say and in fact the registration certificate which is the only government speech that they can point to is all a form the only thing a very small one registration specific it's another is the brand that selected by the applicant not selected by the government and the desiccation goods and other things are specific so if the right says they're important now what are the implications of the validity of section two well we know is a vulgar contest with some fruits have sexual connotations and that changes over time and of course we have you know all the ethnic oriental vikings that indian there's registration for all those there is for devil all these are offensive to least some group of religious people or other ethnic groups in the oral argument in tam the question was well isn't the trademark system designed to support some kind of economic stability what's really designed to support is prevention of confusion and protection of the brand owners rights and in fact a see that there be more registrations for that in fact there is a registration the prince will register for an affair on the other hand the native americans take positions that he committed genocide he's like killer and i don't think there'd be any doubt that hitler would be a scandalous mar because of you know the horrible philosophy that's being pronounced and so how does the p t o decide for the next application for whom the cerro to granite or not intend to do without them violating the freedom of political spiration or the effective group of those spirits group for scandalous is a substantial composite of the general population agree from the standpoint of the first amendment does that make any difference i don't think it makes a difference because the problem with section two a in part and i don't think it's i don't think section two a unconstitutional as to the false association problem that to the extent that it's judging content i think that's the problem and in fact when we're talking about you know courthouse he can go to high park but not because corner and so the government is making value judgments on political and religious and social matters that it's none of its business to be doing under the first amendment in fact that excited my brief a steak i'm refused registration of a corporate name such as i choose health productions l l c and so any of the larks that are refused registration can also be refused a corporate name registration they could also be if you a city business license could also be refused a sales tax from that so in other words the government can start getting involved in making decisions about you know whether pizza is good or not and refusing registrations and i've asked if this is constitutional i don't know why you couldn't refuse registration of the t v station license because you know in the historical record we know there's been and it's meant to keep speech on the radio and we know that there's organizations that have had you know different ethnic groups th not allowed to be bishops in their church for example do we not deny the registrations i think that is the implication as to this particular client the unconstitutional supply of this is broke by clients doesn't say that that's the way it works so you know but it's really the question is it a misspelling of fuck are fucked and is and how can one get through in one spot that way because it depends on the record and in this case the patent office had a record evidence from your company's website that demonstrated f u c t on a t shirt which your client refers to as the origin shirt the orgy shirt contained an image of a lot of naked people engaged in various acts ok well thank you so everything goes on the basis of the record you're saying is if you see the trademark the trademark office on the other hand is looking at how is it going to be interpreted by a substantial composite of the general evidence i'm also not positive i could say that their determination that your client's purposeful analysis and purposeful affiliation or how real a pet they get on his mark he sell things like and what he calls an orgy t shirt now when you see the the word f u c t when a teacher your client calls an orgy shirt and there's a picture of a bunch of naked people on it you really think at that point i have to say that their view that the average person would associate your mark with the bad word is not supported by substantial evidence i have two responses first in the in my brief i talk about the actual evidence about use marketplace where it's sold but this is the same issue racing town in town the  evidence will say happened within a year of the second application in this case the record shows what my client is currently using there's no evidence about when that fisher was used because they got that from the google photos public when doing these images would not associate the f u c t word with the bad word is not supported by substantial evidence in light of that record evidence well the the question is a sign of intent is not at issue with the how would th examples i just gave you are part of this record don't those two examples alone satisfy that incredibly low standard i mean i'm not saying there wouldn't be substantial evidence to go the other way i'm not saying you can put on evidence it goes the other way but i have to decide whether or not under my very deferential standard of review i can say that there was no basis for going the way they did well i would have i certainly would argue that that's a small part of it because i showed the line as the whole line as being in manufacturing the current time and so you know i may not be able convince you on that but i also think it's very relevant that in this case expansion is apparent from the board's opinion that he's being attacked because of his opinion ago that's certainly so in ten you waited no consumers going to see it and even if there's one photo on the web site that doesn't mean the consumers a substantial composite of consumers in the stores buying the product are going to seek its  board's opinion went further than just finding a substantial composite of people disliked it but rather expressed expressed a personal feel i'm sure you read the portions of the board opinion and probably cringed a concluded lactate and lacking taste doesn't meet the scandals or moral standard either but certainly whoever drafted this opinion for the board was making sure to express their personal view about the applicant mark  on the record it's it's clear that the board's ultimate conclusion was premised on the proper standard on the evidence in the record and on what a substantial caught composite of the public w this and how the public would would react and how and interpret this mark and so the the board's board's decision is is not premised on a personal view of a member of the board it is premised on the record in the then presumably that would mean that the court with me even tacked the precedent of this court like mcginley fox and boy that held that the very provision that's at issue in this case is constitutional because it is a limitation on a government program relating to goods and services and commerce and so if the government were to prevail in tam then the government would have would also have to prevail here and the arguments of the contrary primarily that the other side is raising to the extent that he's making arguments that went apply equally in tam it's primarily the argument that that the decision here was premised not on an evaluation of the market but rather on  properly apply the statute didn't consider the market self but instead considered the you know something something extraneous that was not relevant to the mark now might be an argument that he would win this case on the evidence again we think that that's wrong but that would be a reason that  the scandalous provision part of that provision would be unconstitutional even if the disparagement provision survives this court's review in tam so then the other half of the question is is someone more difficult which is what happens if the government did not prevail intamin if the disparagement provision is invalidated and i'm not one it's it's difficult for me to give an answer to that today because it would depend heavily upon the rationale that the court gave for invalidating the provision in ten there was discussion as if the court is aware of the argument and am about whether the arguments that the that mr tam was making there would apply equally to the scandalous provision and and i understood him to be saying that some of his arguments would apply you know across the board to both but that there was room for the court to just address that is bearing the provision in that there were things about either his application particularly r i'm not sure i can say it's greater or lesser it's it's related but they're not necessarily identical you know so i think you know there is a chance that you would that the difference would relate to the government's interest it seems more likely what is the government's interest in preventing scandalous and immoral trade my well they're not preventing the trademark just to be clear at the station but but the government the government interests you know th at most general level the interest is the same which is that the government is making determinations about which marks are most suitable for or which marks the government wants to facilitate and forstmann of to promote goods and services and the government and then congress has concluded book that says mark that disparaged groups and marks that are scandalous more generally that it doesn't wish to to use its program for those purposes i think that the most significant difference between the two cases and it's a little hard for me to say is that i turned mr cameron's up with making this argument but there was some suggestion that mr camp use of the mark was you know making a sort of state political statement or was expressing something beyond sort of commercial identifier we didn't think that that was dispositive in that case by any means in it and in fact he wasn't even really raising on appeal but in answer to your question is there a circumstance in which the court could and that would that would go to  that argument i certainly agree with that but i again i pointed it's a little bit difficult for me to stand here without knowing which of our arguments the court will agree with and which of my arguments the court will reject it to tell you and i think in this case if we would submit that if if the government were not to prevail in ten minutes that provision was held to be unconstitutional in either of the pie or on its face that it's quite likely that supplemental briefing in this case to  address the relationship between that holding which we would then have the benefit of and this case would be appropriate but we think that if the if if the government's position and intent is up out that it's unlikely that supplemental briefing would be necessary because because what i guess what i i'm not certain why you haven't explained to me why supplemental briefing would be necessary because you haven't explained most of your opponents briefs about the first amendment and you fail to address it entirely  certainly your verse and this is we've had this discussion before so what would be a basis upon which there is a need for supplemental briefing tell me why if it is rendered facially unconstitutional what possible difference could there be between that decision and a decision on scandalous in the mall well thing give me any reason one argument that was made in the end that and again i i hesitate because these are not arguments that we think are correct and so  the question is really is there other things the court could say that would distinguish the two but one argument that was made was that there was a viewpoint component to this the disparagement provision viewpoint based component and that that was legally relevant such that they could prevail on that basis if you agreed with most of those propositions both of which we think are wrong then you would have the same argument in the scandalous context now there are again i don't wish to speculate on how the court is going to resolve the case and say oh if you say this that if you phrase it this way then we win this case and if you say it that way we lose this case if this court wants to entertain a constitutional challenge to an act of congress based on a recent unbanked decision we think it should be done based on briefing by the parties rather than by my speculation ahead of time about what the opinion is likely to say but on the flip side because we do as we stand here today have controlling precedents of this provision and so we know that if the anwar court doesn't disturb that really expensive after the application is million up the certificate a dollar for postage and another dollar for the paper my client opinions are relevant to the outcome is sort of his under market is french you can't trust it's question authority he's a you've read he does have in the past long past graphic images of like a doberman in course dobermans in california is a big issue so he's talking about political things violence  if we consider mark is determined by either sight or sound or meaning there's no doubt about what the meaning of that yet so how can we that's explicit explicitly explicitly the word fuck how that can be registered because that's the meaning th