Amicus Curiae Brief — Lee v. Tam, 137 S. Ct. 30 (2016) (No. 15-1293)

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No. 15-1293

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In The

Supreme Court of the United States

MICHELLE K. LEE, UNDER SECRETARY OF COMMERCE

FOR INTELLECTUAL PROPERTY AND DIRECTOR,

UNITED STATES PATENT AND TRADEMARK OFFICE,

Petitioner,

V.

SIMON SHIAO TAM,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

BRIEF OF AMICUS CURIAE PRO-FOOTBALL, INC.

IN SUPPORT OF RESPONDENT

ROBERT L. RASKOPF LISA 8S. BLATT

TODD ANTEN Counsel of Record

JESSICA A. ROSE ROBERT A. GARRETT

Quinn Emanuel Urquhart STEPHEN K. WIRTH

& Sullivan LLP Arnold & Porter LLP

51 Madison Ave., 601 Massachusetts

22nd Floor Ave., NW

New York, NY 10010 Washington, DC 20001

(212) 849-7000 (202) 942-5000

robertraskopf @ lisa.blatt@aporter.com

quinnemanuel.com

Counsel for Amicus Curiae Pro-Football, Inc.

ERROR ATS TIT aE EAA IAA

Wit SON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON,D C. 20002

TABLE OF CONTENTS

Page

po Be i k,n:

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

PI oo ivinictsindecesuckansassiveenes: oat Se Rey te ber assel

I iliac atiniaiaateb idl dneninanayensvntiesetase 7

SECTION 2(a) VIOLATES THE FIRST

AMENDMENT, PARTICULARLY IN THE

CANCELLATION CONTEXT ........0000.0. 00... Pa HA 7

A. Section 2(a) Triggers Strict Scrutiny .... curiow

1. Trademarks Are Fully Protected

I icccadhadinnatdecsuuteadcaandebnaimeipeisentensissé> +50) 7

2. Section 2(a) Impermissibly Burdens

coco ahvicedsieasssheveordiurence OM

3. This Court’s Precedents Foreclose

the Government’s “But You Can Still

eI sec snd snecaninstewiienwenroneesse ee

B. Section 2(a) Fails Even Intermediate

SI i idirtrcacbilanapsinnneendcbanieebetamammabaitinnainesini«9ss 16

1. Section 2(a) Cannot Be Justified As

Protecting Underrepresented Groups ...... 16

2. Section 2(a) Cannot Be Justified As

Preventing Government Association........19

3. PTO’s Arbitrary Application of § 2(a)

Undercuts the Government’s

I i cc acisseamantmicn Juans

C. Registration Is Neither Government

Sees PEST BO BIG onssess neces sccccscscvescccessecesoee 24

1). Section 2(a)’s Application in the

Cancellation Context Is Independently

ee RESIN ep ae Looe

TABLE OF CONTENTS—continued

Page

1. Cancellation Does Not Further the

Government’s Asserted Interests .............29

2. Cancellation Imposes Far Greater

Burdens on Mark Owners....................0.... 30

Re ER ee Be OY IU eae RIP ES 35

APPENDIX

1

TABLE OF AUTHOxwxii TES

Page(s)

Cases

Agency for Int’l Dev. v. Alliance for Open

Soc’y Int'l, Inc.,

193 S&S. Ce. SBBI (BOUB)............ccrccccrrcccrccscccceesesssees 26

Ark. Writers’ Project Inc. v. Ragland,

BE a circoncdeckestvecenvassssnseiessunseseesss a

Autor v. Pritzker,

740 F.3d 176 (D.C. Cir. 2014) ..............ccccceeeeeeeeees 26

B&B Hardware, Inc. v. Hargis Indus.,

135 S. Ct. 12903 (2O1G)................ccrrccccecreseees 4, 7,11

Bd. of Trs. of the State Univ. of N.Y. v. Fox,

492 U.S. 468 (1GBB)....ccccccssccsscccscscccccccrccccccsccnscessess 8

Bolger v. Youngs Drug Prods. Corp.,

BEE Fe vi nnccssenncnsccsevesesccnccscescononecasevceses 16

Bullfrog Films, Inc. v. Wick,

847 F.2d 502 (9th Cir. 1988).................. ccc ces 26

Cent. Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n of NLY.,

PY 9:8 & (, RRS EnErerenenrerr re 16

Citizens United v. Fed. Election Comm'n,

ee I nvedesbeniseieidsseenisuanuuee 12

Cleveland v. United States,

as sclinteesteebenenustion es» 11, 27

Davenport v. Wash. Educ. Ass’n,

ee te re I. ssh acnsietisedanienubeseinunnees 26, 27

IV

TABLE OF AUTHORITIES—continued

Page(s)

Dep't of Tex., Veterans of Foreign Wars of

the U.S. v. Tex. Lottery Comm'n,

760 F.3d 427 (Sth Cir. 2014).........0....cc cece cee e eens 26

FCC v. League of Women Voters of Cal.,

ee a I OI aciecinecsencssncacnessssenesedacess<cosiuis MO

Good News Club v. Milford Cent. Sch.,

Neen etcssunmvecushaetscaes 30

Greater New Orleans Broad. Ass’n v.

United States,

EEE aT a a eR ee 23

Harper & Row, Publishers, Inc. v. Nation

Wnters.,

471 U.S. 539 (1985)............00...... il Baraca edt 10

Harris v. McCrae,

I i 26

Hustler Magazine, Inc. v. Falwell,

Ge Ss SP CRD ncndescoivocenvcescesess=--s eeéldbanseaiie 17

Legal Servs. Corp. v. Velazquez,

Pe SPs Me CED cnivcrscccsceesesisccesssseseiies 25, 26, 28

L.A. Police Dep’t v. United Reporting Publ’g

Corp.,

REED SRE ESSE A ok PE EP. 15

Illinois ex rel. Madigan v. Telemarketing

Assocs., Inc.,

438 U.S. 600 (2003)........ EG Mt Ae ER RSE SAE 10

Vv

TABLE OF AUTHORITIES—continued

Page(s)

Minneapolis Star & Tribune Co. v. Minn.

Comm’r of Revenue,

I nn ccencuwesuesnbencnanbnsnessunses 15

Mishawaka Rubber & Woolen Mfg. Co. v.

S.S. Kresge Co.,

oo dehic univacisen seni seodaeeh 7

N.Y. Times Co. v. Sullivan,

ee I CED ices s osssceescess ov viesioedsssesiens AREAL 8

NEA v. Finley,

ee eI... sccveavendaustusceidecebiepdnndauans 28

Nike, Inc. v. Kasky,

ee on ..ccacccaserscceescusosseccuspennsverce

Pitt News v. Pappert,

STO F.3d SB Gad Clr. BOOG) ..........002..sccecccccssseeceeees 14

Pro-Football, Inc. v. Blackhorse,

112 F. Supp. 3d 439 (E.D. Va. 2015)................... l

Qualitex Co. v. Jacobson Prods. Co.,

| cc anscencesudonnseupumessassesenoes 8

Reed v. Town of Gilbert,

Be ls i I censecncncccdvecssancénnssccsccconsestes 12

Regan v. Taxation With Representation of

Wash..,

I. ss sounaubinanbiveneaincuases 26, 28

Reno v. ACLU,

nn oar bacsddsadavssghaxeoseipdiacass eens 30

vi

TABLE OF AUTHORITIES—continued

Page(s)

Rosenberger v. Rector & Visitors of the

Univ. of Va.,

515 U.S. 819 (1995).................. RR as 2s 14, 28

Rust v. Sullivan,

EG A eh sincisccskicncoseteccscetentocstiaaseee 25

Simon & Schuster, Inc. v. Members of the

N.Y. State Crime Victims Bd.,

OS We ee ee eciv.cnwsstcactidecasrttceasoieseel coupes 14

Snyder v. Phelps,

SR. B Cis ee Ce i i ieccccccsvctenisncetiersticcwamnae 17

Sorrell v. IMS Health Inc.,

gtr & i) tern 10, 14, 15, 16

United States v. Stevens,

Sy ee ee ichirienes ove cnsiideivsceniesstonaasiaemaeee 9

Walker v. Tex. Div., Sons of Confederate

Veterans, Inc.,

8 Be | RE ee ss 24, 25

Walt Disney Co. v. Powell,

698 F. Supp. 10 (D.D.C. 1988) ............0.0 10

Ysursa v. Pocatello Educ. Ass'n,

— tk | RRR Cae Ree ara 27

Zacchini v. Scripps-Howard Broad. Co.,

433 U.S. 562 (1977)............ eehacaiad ela lamdaacbelisanane 10

Trademark Trial and Appeal Board Decisions

Application of Helene Curtis Indus., Inc.,

306 F.2d 492 (C.C.P.A. 1962)..........ccccccccccssccsseeess 20

Vill

TABLE OF AUTHORITIES—-continued

Page(s)

Application of Nat'l Distillers & Chem.

Corp.,

207 F.2d 941 (C.C.P.A 19G2).........................2...... 20

Blackhorse v. Pro-Football, Inc.,

111 U.S.P.Q.2d 1080 (T.'T.A.B. 2014).................. 29

Harjo v. Pro-Football, Inc.,

50 U.S.P.Q.2d 1705 (T.T.A.B. 1999).................... 21

In re Heeb Media LLC,

89 U.S.P.Q.2d 1071 (T.T.A.B. 2008)........00.......... 22

In re In Over Our Heads,

16 U.S.P.Q.2d 1653 (T.T.A.B. 1990).................... 21

Constitutional Provisions

SEER a passim

Statutes

ne 8

as sapenssesonsone passim

on conc csssinnecesscccess Rte ES SAGE ene en 27

a ebanoesonen 23, 29, 31

ss ceunueneedenocevaccesd 23, 29

Rs OF I cicccecececesses: ON 27

le le) ) AL aE TEI 27, 29

15 U.S.C. § 1125(a)............. 0 De Saree nd is

18 U.S.C. § 48......... Se lciiedettin a adantinaiide st a ERE eat

Vlll

TABLE OF AUTHORITIES—continued

35 U.S.C. § 153 ..... tieiniadintee ‘haheitiastabeainiiclanieiiaiiial

Other Authorities

A. Taube & K. Richards, 15 Racist Brand

Mascots and Logos that Make the

Redskins Look Progressive, Business

Insider (June 19, 2014)...............0ccccceeeeeeeee

Brief of the United States, Pro-Football, Inc.

v. Blackhorse, No. 15-1874 (4th Cir. Feb.

ON beets cas <ctnttandnceunecseenbininlonscnalcodes pilomad

Brief of the United States, Nike, Inc. v.

Kasky,

539 U.S. 654 (2003) (No. 02-575)................ :

Hearings on H.R. 4744 Before the

Subcomm. on Trademarks of the H.

Comm. on Patents, 76th Cong. (1939)........

J.W. Cox et al., New Poll Finds 9 in 10

Native Americans Aren’t Offended by

Redskins Name, Wash. Post, May 19,

L.. Munoz, Wearing Pride on Sleeve, L.A.

Times, Jan. 17, 2O0G...................+.-.

M. Kern-Foxworth, Aunt Jemima, Uncle

Ben, and Rastus: Blacks in Advertising.

Yesterday, Today, and Tomorrow (1994)...

M.M. Manring, Slave in a Box: The Strange

Career of Aunt Jemima (1998) ...................

Page(s)

aetna 34

1x

TABLE OF AUTHORITIES—continued

Page(s)

Opening Brief of Appellant, Pro-Football,

Inc. v. Blackhorse,

No. 15-1874 (4th Cir. Oct. 30, 2015)..........0......... 17

PTO, Basic Facts About Trademarks...................... 11

PTO, Do I Need a Trademark Attorney? ................. 11

Pe, eo ia citicliabimeenbananionsin 11

PTO, Trademark Electronic Search System ..............5

The Racial Slur Database ..................csssscssseeesseeesseees 22

The Racially Charged Meaning Behind the

Word Thug, National Public Radio (Apr.

UII SIT icine cctsers-tnciniguinalhamubebisitanets diniaedinaaianaeietainnuities 24

Reply Brief of Appellant, Pro-Football, Inc.

v. Blackhorse,

No. 15-1874 (4th Cir. Mar. 18, 2016) .................. 17

There Are Far More People Named Hitler

than Youd Think, Vice.com (Sept. 22,

EE RRS ILS Meret SI ER a 16

TTAB Manual of Practice § 303.03 (June

GEE AIRS AT EPA Ay TR et 31

U.S. Copyright Office, Copyright Basics.................. 15

U.S. Copyright Office, Sample Certification

Fe iectieinccintacnientnsieimcicenmnaretinrimncesiens 20

INTEREST OF AMICUS CURIAE '

Amicus Pro-Football, Inc. (the “Team” or “Red-

skins”) owns and operates the National Football

League’s Washington Redskins. The Team has a

substantial interest in whether the disparagement

clause in §2(a) of the Lanham Act, 15 U.S.C.

§ 1052(a), violates the First Amendment. In 2014,

the PTO invoked § 2(a) to schedule the cancellation

of six of the Team’s Redskins trademark registra-

tions on the theory that the trademarks disparaged

Native Americans when the PTO registered the first

mark in 1967. The U.S. District Court for the East-

ern District of Virginia affirmed the cancella-

tions. Pro-Football, Inc. v. Blackhorse, 112 F. Supp.

3d 439 (E.D. Va. 2015). The Team appealed; the case

is fully briefed; and the Fourth Circuit has placed the

appeal in abeyance pending this Court’s decision

here. Pro-Football, Inc. v. Blackhorse, No. 15-1874.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Section 2(a)’s ban on the registration of disparag-

ing trademarks is facially unconstitutional. At min-

imum, the ban is unconstitutional as applied to the

cancellation of existing registrations.

A. The disparagement clause triggers strict

scrutiny. Trademarks are names, symbols, and logos

that communicate powerful messages: they allow au-

diences to connect trademark owners with their

' No counsel for a party authored this brief in whole or in part.

No one other than amicus curiae, its members, its member as-

sociation, or amicus’s counsel made a monetary contribution in-

tended to fund the preparation or submission of this brief. The

parties have consented to the filing of this brief, and copies of

the letters of consent are on file with the Clerk’s Office.

”)

_

goods or services. When the PTO registers a trade-

mark, the PTO confers on the mark special legal sta-

tus and legal protections from interference by third

parties. The PTO acts as regulator in registering

trademarks, just like the government acts as regula-

tor when it issues patents or registers copyrights.

Denying legal protection to disfavored speech

blatantly violates the First Amendment. The dis-

paragement clause impermissibly discriminates on

the basis of both disfavored content and viewpoint.

The government expressly concedes that the clause

is content-based. Br. 11, 36. The government also

implicitly concedes that it is viewpoint-based. The

government acknowledges that the clause targets on-

ly racial slurs, crude references to women’s anatomy,

and demeaning depictions of religious figures, while

leaving unburdened speech that expresses a positive

or neutral viewpoint on those same subjects. Br. 10,

28.

B. Section 2(a) fails even intermediate scrutiny.

Congress did not pass the Lanham Act as civil rights

legislation. The Act does not directly further the

government’s interest in protecting underrepresent-

ed groups from racial slurs, misogyny, or demeaning

religious messages. If socia! justice were the goal,

the disparagement clause overshoots it by a mile.

The clause applies to a// persons, institutions, and

beliefs. The statute therefore equally protects rac-

ists, misogynists, and blasphemers from disparage-

ment. The same is true for racist, misogynist, and

blasphemous institutions and beliefs.

The PTO does not rigorously enforce the statute.

And when it does, the PTO’s actions are arbitrary

and wildly inconsistent. Amicus regrets that it is

necessary to use offensive language in a brief to this

3

Court. But reference to the range and pervasiveness

of the PTO’s startling registrations disproves that

§ 2(a) furthers significant government interests, that

these registrations reflect merely occasional errors,

and that the PTO applies the statute rationally and

evenhandedly. The PTO has registered marks such

as YARDAPES landscaping services; AFRO-SAXONS and

DAGO SWAGG clothing; BAKED BY A NEGRO baked

goods; CRIPPLED OLD BIKER BASTARDS clothing; YID

DISH online dating newsletter; CRACKA AZZ SKATE-

BOARDS skateboards and apparel; RETARDIPEDIA en-

tertainment services, and many more similar marks.

The PTO has registered BOOBS AS BEER HOLDERS

adult-themed videos and photos; VAJAYJAY HAT party

hats; and MATCH-A-SNATCH playing cards. The Ap-

pendix contains additional examples, and is by no

means exhaustive.’

These registrations similarly defeat the govern-

ment’s assertion that § 2(a) “avoid[s] the incorpora-

tion of objectionable marks into official government

communications, and the consequent association of

the marks with the government itself.” Br. 11, 28.

Over two million registered marks for countless

goods and services render the Principal Register in-

capable of communicating any government message.

C. The government argues that although no

“discrete analytic” category supports upholding

§ 2(a), this Court should combine government speech

and subsidy principles to hold that trademark regis-

* The PTO has registered all marks appearing in this brief in

small-cap font. The registrations in the Appendix appear in al-

phabetical order. These and other registrations are available

by searching the PTO’s database. See PTO, Trademark Elec-

tronic Search System, http://tmsearch.uspto.gov.

4

tration permits rank discrimination against disfa-

vored speech. Br. 43. The government’s brief refers

to trademark registration 89 times as a government

program, 26 times as government assistance, and 25

times as a government subsidy. But to our know-

ledge, in the 70 years since the passage of the Lan-

ham Act, the PTO has never described trademark

registration in any of these terms, or treated regis-

trations as government speech.

Instead, the PTO aptly describes the registration

process as a legal proceeding, and this Court has ex-

plained that registration confers legal status, protec-

tion, and rights. B&B Hardware, Inc. v. Hargis In-

dus., 1385 S. Ct. 1293, 1299-1301 (2015). Legal pro-

ceedings and advantages are not government subsi-

dies, much less platforms for government speech.

The government's theory would open the floodgates

to discrimination based on disfavored content, view-

point, and speakers in other government-regulatory

schemes, including copyright registration.

But the consequences would be staggering even

were this Court to adopt a for-this-case-only theory

of the First Amendment. Two million registered

trademarks would overnight become government-

subsidized names and government speech. Marks

like those set forth in the Appendix, including Yo’

ASS FACE; | WORK HARD Bitct!; TRANNY SURPRISE;

SMACK My Ass & CALI, ME SALLY; RELIGION KILIs;

SEX SENT ME TO TITE SLAMMER; LAUGHING MY VAGINA

OFF; ANAL FANTASY COLLECTION; BUSH PANTY;

BLACKGIRLSDOPORN.COM; and TEENSDOPORN.COM,

would have the full backing of, and bear the official

seal of approval from, Uncle Sam. What’s more, Un-

cle Sam would be the one speaking. The same would

be true for all registered logos, such as numerous

5

confederate flags and lewd depictions of women’s

anatomy, including those on the registered marks

SPANK ME CARDS.COM, RIDE DOGGIE STYLE, and

EWHIP.COM. The PTO cannot, on its own initiative,

rid the registry of these or similar registrations.

Registration is thus not analogous to government

speech. Either the PTO has unfettered control over

the government’s message, or registration does not

reflect the government’s message.

D. However the Court rules with respect to the

PTO’s initial refusal to register marks, § 2(a) cannot

be constitutionally applied to cancel existing regis-

trations. If the government cancels a registration

because it historically may have disparaged a group,

the government’s purported interests in protecting

the affected group or disassociating itself from disfa-

vored speech are incoherent. Those interests relate

to the impact that the mark has on the group today,

not its historical impact. The chilling of speech and

the upending of reliance interests are magnified ex-

ponentially when the mark owner has rclied on the

protections of registration in investing in its brand.

And cancellation forces mark owners to defend

against claims of historical offense when relevant

witnesses may no longer be alive and key documents

may no longer exist.

The Redskins’ case illustrates the fundamental

constitutional principles at stake. The Redskins are

one of the most storied franchises in sports. The

Team adopted the Redskins name in 1933, and the

PTO registered six Redskins marks on six separate

occasions from 1967 to 1990, without objection from

anyone. Yet in 2014, the PTO granted a petition

brought by five Native Americans to cancel the

Team’s registrations because the Redskins’ name

6

may have disparaged an unspecified percentage of

Native Americans starting in 1967. The PTO was

indifferent to whether Native Americans today over-

whelmingly do not find the name disparaging. Like-

wise, the PTO expressed no concerns with transmit-

ting the Team’s name abroad for half of a century.

Upholding the statute in the cancellation context

would permit extraordinary abuses of government

power. Anyone offended by a registered mark can

seek cancellation, no matter the registration’s age,

no matter the number of times that the PTO previ-

ously registered the mark, and no matter the conse-

quences to the owner’s brand or consumers. Any

person belonging to the referenced group can seek

cancellation based on the mark’s allegedly disparag-

ing meaning in the past, whether or not the person

was alive at the time of registration, whether or not

any member of the group objected at the time of reg-

istration, whether or not anyone besides the person

seeking cancellation currently finds the mark dis-

paraging, whether or not the person ever purchased

the mark’s good or service, whether or not a foreign

country ever complained about the mark, and

whether or not relevant witnesses or pertinent rec-

ords still exist. And the PTO will cancel the registra-

tion so long as the person shows that some unspeci-

fied percentage of the referenced group may have

perceived, to some unspecified non-trivial degree,

that the mark was unflattering to the group (or for

that matter, to any institution or belief) when the

mark was registered.

The constitutional guarantees of free speech and

fundamental fairness prevent this kind of madness.

7

ARGUMENT

SECTION 2(a) VIOLATES THE FIRST AMEND-

MENT, PARTICULARLY IN THE CANCELLATION

CONTEXT

Section 2(a) bars registration of trademarks that

“may disparage ... persons, living or dead, institu-

tions, [or] beliefs . . . or bring them into contempt, or

disrepute.” 15 U.S.C. § 1052(a). That language fa-

cially discriminates against protected speech based

on disfavored content and viewpoint and is thus un-

constitutional. At a minimum, the clause cannot be

constitutionally applied to cancel existing registra-

tions.

A. Section 2(a) Triggers Strict Scrutiny

Registration of trademarks, like any registration

scheme, is purely regulatory. As such, Congress can-

not condition the “procedural and substantive legal

advantages” guaranteed by the Lanham Act, B&B

Hardware, 135 S. Ct. at 1300, on a requirement that

the mark owner change its name. Such burdens

trigger strict scrutiny, and the government has never

argued that the statute survives this exacting stand-

ard.

1. Trademarks Are Fully Protected Speech

Trademarks are names that are expressive in

their own right, and they enable mark owners to as-

sociate all of their other speech—commercial or oth-

erwise—with their brands. Just as an individual

needs a name to function at home, work, and in soci-

ety, individuals and organizations rely on trade-

marks to communicate to the public when providing

a good or service. Their very “function” is “psycho-

logical,” Mishawaka Rubber & Woolen Mfg. Co. v.

8

S.S. Kresge Co., 316 U.S. 203, 205 (1942)—to “carry||

meaning,” Qualitex Co. v. Jacobson Prods. Co., 514

U.S. 159, 162 (1995).

Countless marks speak for themselves: AMBU-

LANCE CHASERS SUCK; I HATE MY TEENAGE DAUGH-

TER; and STOP COMPLAINING ABOUT YOUR BABY DAD-

DY, YOU PtcKED HIM! But all marks are inherently

expressive, whether or not the speaker is motivated

by profit. HERSHEY'S and MERCEDES-BENZ signal a

certain quality of chocolate or automobile. THE NEw

YORK TIMES and FOX NEWS CHANNEL signal certain

types of news. THE CHURCH OF JESUS CIIRIST OF

LATTER-DAY SAINTS, MARCH OF DIMES, NATIONAL RI-

FLE ASSOCIATION, and REPUBLICAN NATIONAL COM-

MITTEE communicate certain religious, charitable, or

political missions. HARVARD UNIVERSITY signals the

source and quality of educational services.

The expressive value of marks is readily appar-

ent for respondent's and the Team’s marks for enter-

tuinment services. HKntertainment is inherently ex-

pressive, and entertainers’ names are inextricably

intertwined with the entertainment services they

provide. Names are powerful. The marks THE 2

LIVE CREW and NEW YORK PHILHARMONIC conjure up

very different emotions and associations with music.

The same is true for the names of sport teams, bal-

lets, musicals, or improvisational comedies.

That mark owners act for a profit is of no mo-

ment. “Some of our most valued forms of fully pro-

tected speech are uttered for a profit.” Bd. of Trs. of

the State Univ. of N_Y. v. Fox, 492 U.S. 469, 482

(1989); see, e.g., N.Y. Times Co. v. Sullivan, 376 U.S.

254 (1964). It is thus irrelevant that registration re-

quires that trademarks be “in use in commerce.” 15

U.S.C. § 1051(aX3)C). Neither Congress’s exercise

9

of Commerce Clause power nor an owner’s profit mo-

tive insulates government burdens on speech from

strict scrutiny. For instance, United States v. Ste-

vens applied strict scrutiny to a statute criminalizing

depictions of animal cruelty “done for ‘commercial

gain’ in interstate or foreign commerce.” £59 U.S.

460, 464—65 (2010) (quoting 18 U.S.C. § 48). For-

profit companies also use their registered names to

engage in non-commercial speech. Nike, Inc. v.

Kasky, 539 U.S. 654, 656 (2003) (Stevens, J., concu:

ring in dismissal of the writ).

In any event, countless non-profit organizations

use registered trademarks to engage in purely politi-

cal, religious, or similar speech not for profit. EVAN-

GELICAL LUTHERAN CHURCH IN AMERICA, SOUTHERN

POVERTY LAW CENTER, MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL FUND, and UNITED

STATES HOLOCAUST MEMORIAL MUSEUM are but a

few. Although these non-profits must use their

marks in commerce to obtain registration, they do

not communicate with a commercial purpose or in a

commercial capacity. Religious, charitable, political,

and other non-profit speakers receive the federal pro-

tections that come from registration because these

speakers use their marks across state lines. And be-

cause this case involves a facial challenge, the gov-

ernment must show that regulatory burdens on these

marks would not trigger strict scrutiny. Stevens,

459 U.S. at 472-73.

Regardless of the type of mark at issue, § 2(a) “is

squarely based on the expressive aspect of the

speech, not its commercial-speech aspects.” Pet.

App. 6la-62a. The PTO looks to whether a mark

disparages a referenced group, over and above the

mark’s source-identification function. And even

10

when marks operate purely in the commercial arena,

because § 2(a) discriminates against viewpoint, see

infra pp. 12-13, the disparagement clause is subject

to at least “heightened scrutiny.” Sorrel] v. IMS

Health Inc., 564 U.S. 552, 566 (2011).

Several amici argue that trademarks deserve

less protection because trademarks prevent third

parties from speaking freely. See, e.g., Brief for Ami-

ci Blackhorse et al. 9-12; cf Gov't Br. 40. But

trademark law prevents speech that causes consum-

er confusion or constitutes theft of intellectual prop-

erty. The First Amendment does not protect speech

that misleads consumers. //linois ex rel. Madigan v.

Telemarketing Assocs., Inc., 538 U.S. 600, 612

(2003). It similarly “gives no right to steal another's

statutorily protected intellectual property.” Walt

Disney Co. v. Powell, 698 F. Supp. 10, 12 n.2 (D.D.C.

1988); see Harper & Row, Publishers, Inc. v. Nation

Enters., 471 U.S. 539 (1985); Zacchini v. Scripps-

Howard Broad. Co., 433 U.S. 562 (1977).

Judge Dyk opined below that trademarks involve

only commercial speech unless the mark communi-

cates “core political expression” such as respondent’s

mark. Pet. App. 103a (Dyk, J., concurring in part

and dissenting in part). The decision below ex-

plained that respondent seeks, through the name of

his all Asian-American band, to reclaim a slur as a

source of pride. Jd. at 10a. The government rightly

disavows Judge Dyk’s approach as impermiasibly

viewpoint-based. Br. 46—47 n.12.

Such a distinction is also unconstitutionally

speaker-based. Sorrell, 564 U.S. at 580. The PTO

cannot treat two speakers differently depending on

the speaker's motivation for choosing the name. Sc-

rious equal-protection concerns likewise would be

11

triggered if the government provided legal protection

to disparaging names only when the mark owner be-

longs to the referenced group. The distinction also

would be impossible to administer. What if one non-

Asian-American joined The Slants. Two? And would

the government be required to accept the mark own-

ers representation as to motive for choosing the

name?

2. Section 2(a) Impermissibly Burdens Dis-

favored Speech

Registering trademarks—just like registering

copyrights or issuing patents or video-poker licens-

es—is regulatory in nature and does not give rise to

any proprietary government interest. Cleveland v.

United States, 531 U.S. 12, 23-24 (2000). In ex-

change for meeting statutory criteria, the govern-

ment confers on registered marks “legal rights” and

“legal advantages” to “protect” those marks against

interference from third parties. B&B Hardware, 135

S. Ct. at 1299-1301 (quotation marks omitted). The

PTO similarly advises the public that registration is

a “legal proceeding.”

Because registration is regulatory, this case is

straightforward. “Content-based laws—those that

' See, e.g., PTO, Trademark Basics, https://www.uspto.gov/

trademarks-getting-started/trademark-basics (“The trademark

registration process is a legal proceeding|.|”); PTO, Basic Facts

About Trademarks, https://www.uspto.gov/sites/default/files/

trademarks/basics/printable transcript_Trademark Basics_

presentation.doc (“|T]he trademark registration process is pret-

ty conplex. It is, technically, a legal proceecing|.]”); PTO, Do

I Need a Trademark Attorney?, https://www.uspto.gov/

trademarks-getting-started/using-legal-services/do-i-need-

trademark-attorney (“The filing of a trademark application be-

gins a legal proceeding|.}”).

12

target speech based on its communicative content—

are presumptively unconstitutional and may be justi-

fied only if the government proves that they are nar-

rowly tailored to serve compelling state interests.”

Reed v. Town of Gilbert, 135 8. Ct. 2218, 2226 (2015).

“Government discrimination among viewpoints . . . is

a more blatant and egregious form of content dis-

crimination.” Jd. at 2230 (quotation marks omitted).

The First Amendment “stands against attempts to

disfavor certain subjects or viewpoints.” Citizens

United v. Fed. Election Comm'n, 558 U.S. 310, 340

(2010). And because the government has never ar-

gued that § 2(a) satisfies strict scrutiny, the statute

is facially unconstitutional if it is either content- or

viewpoint-based.

Section 2(a)’s bar on registering disparaging

marks is content-based because it is a “speech regu-

lation targeted at specific subject matter.” Heed, 135

S. Ct. at 2230. Section 2(a) is viewpoint-based be-

cause it facially regulates speech based on a “particu-

lar point of view,” FCC v. League of Women Voters of

Cal, 468 U.S. 364, 383-84 (1984), Le, the statute

“discriminate(s}) among viewpoints within {a| subject

matter.” Reed, 135 5. Ct. at 2230; see Pet. App. 21a-

24a.

The government's brief concedes the former (at

11, 36) and inadvertently demonstrates the latter.

The brief explains that § 2(a) bars registration of

“marks containing crude references to women based

on parts of their anatomy; the most repellent racial

slurs and white-supremacist slogans; and demeaning

illustrations of the prophet Mohammed and other re-

ligious figures.” Br. 10, 28 (emphases added). Exact-

ly. The words “crude,” “slurs,” and “demeaning” are

unabashedly and paradigmatically viewpoint-based.

13

Section 2(a) does not target a/l/ references to women,

all references to women’s body parts, a// commentary

on race, or all depictions of religious figures. Rather,

§ 2(a) burdens speech only if and when it conveys a

negative viewpoint towards the subject matter at is-

sue. The statute targets viewpoint in its most injuri-

ous form: it bars registration of marks that express a

critical opinion or perspective. /d. Accordingly, § 2

“driv(es| ideas from the market place.” Gov't Br. 48.

The government argues that § 2(a) is viewpoint-

neutral because it operates without regard to “the

ideology, opinion, or perspective of the trademark

owner.” Br. 46 (quotation marks omitted). But that

is non-responsive. The statute still discriminates on

the basis of viewpoint. Section 2(a) bars registration

based on the “ideology, opinion, or perspective” that

the mark purportedly expresses to the referenced

group. “It is thus the viewpoint of the message con-

veyed which causes the government to burden the

speech.” Pet. App. 23a.

3. This Court’s Precedents Foreclose the

Government's “But You Can Still Speak”

Argument

Citing the text of the First Amendment, the gov-

ernment argues that § 2(a) “does not abridge re-

spondent’s freedom of speech” because “it does not

restrict [his] ability to use [his] mark or to engage in

any other speech.” Br. 25-26. As such, the govern-

ment argues that § 2(a) “is reviewed for a rational

basis.” Br. 48. But speech is restricted whenever the

government denies protection to disfavored speech.

Section 2(a) forces mark owners to change their

names and brand identities to obtain the legal pro-

tections of registration. This is precisely what the

First Amendment is designed to prevent. The gov-

14

ernment’s theory would gut this Court’s First

Amendment jurisprudence and open up any number

of regulatory programs, such as copyright registra-

tion, to discrimination based on disfavored content,

viewpoint, and speakers.

The First Amendment’s exacting scrutiny applies

to regulatory burdens as well as outright bans on

speech. The “government offends the First Amend-

ment when it imposes financial burdens on certain

speakers based on the content of their expression.”

Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819, 828 (1995). “|T}he distinction between

laws burdening speech is but a matter of degree|,)

. and the Government's content-based burdens

must satisfy the same rigorous scrutiny as its con-

tent-based bans.” Sorrell, 564 U.S. at 565—66 (quota-

tion marks omitted). “The threat to the First

Amendment arises from the imposition of financial

burdens that may have the effect of influencing or

suppressing speech, and whether those burdens take

the form of taxes or some other form is unimportant.”

Pitt News v. Pappert, 379 F.3d 96, 111-12 (3d Cir.

2004) (Alito, J.).

Sorrell invalidated a state law that did not

abridge speech but nonetheless burdened pharma-

ceutical marketing by denying manufacturers access

to, and the right to use, information that made their

marketing more effective. After referencing burdens

over 30 times, Sorrell held that “the State has bur-

dened a ferm of protected expression,” while leaving

“unburdened those speakers whose messages are in

accord with its own views.” 564 U.S. at 580; see also

Simon & Schuster, Inc. v. Members of the N.Y. State

Crime Victims Bd., 502 U.S. 105, 115 (1991); Ark.

Writers’ Project Inc. v. Ragland, 481 U.S. 221, 227-

15

28 (1987); Minneapolis Star & Tribune Co. v. Minn.

Comm’r of Revenue, 460 U.S. 575, 582-83 (1983).

Moreover, as explained in Sorrell, 564 U.S. at 568~

69, eight Justices in Los Angeles Police Department

v. United Reporting Publishing Corp., 528 U.S. 32

(1999), endorsed the principle that the First

Amendment bars governments from denying gener-

ally available benefits based on content or speakers.

The government’s “but you can still speak” theo-

ry has no logical stopping point and would insulate

numerous denials of regulatory benefits from any

First Amendment scrutiny. Take the similarities be-

tween copyright and trademark registration.

“(Rlegistration is not a condition of copyright protec-

tion” but only “provides several ... advantages.”

U.S. Copyright Office, Copyright Basics 7, http://

copyright.gov/circs/circO1.pdf. Cancelling a registra-

tion leaves copyright owners free to perform or sell

their works. Cancellation neither restricts nor pre-

vents copyright owners from expressing any mes-

sage. Or in the government’s words (at 26), cancel-

ling respondent’s copyright registrations would “not

limit ... what songs he may sing, how he may adver-

tise, or what messages he may convey, through his

band or in his own private speech.” Indeed, trade-

marks and copyrights can protect the same speech,

like Mickey Mouse, “crude” depictions of women’s

anatomy, or “demeaning illustrations of the prophet

Mohammed.” Gov’t Br. 10, 28.

The government’s position would permit it to pe-

nalize disfavored speakers by refusing to issue pa-

rade permits, repair roads or remove snow around

their businesses, or provide fire or police protection.

The same goes for birth certificates or any other reg-

istration or recordation scheme. States could cancel

16

the birth certificates of Joe Slants (or Joe Redskins)

for any or no reason, without triggering First

Amendment review. Cf There Are Far More People

Named Hitler than You'd Think, Vice.com (Sept. 22,

2014), http://www.vice.com/read/meet-the-hitlers-

matt-ogens-interview-183. In all these cases, the

First Amendment would be triggered even though

the speakers can still commumicate their views.

The government argues (at 26) that § 43(a) of the

Lanham Act, 15 U.S.C. § 1125(a), gives limited pro-

tections to unregistered marks. That misses the

point. Registration confers significant additional! le-

gal protections, and “[t]he loss of these rights, stand-

ing alone, is enough” to trigger the First Amend-

ment. Pet. App. 40a. Indeed, if trademark registra-

tion did not confer more protection than § 43, no one

would register their trademarks.

B. Section 2(a) Fails Even Intermediate

Scrutiny

Even were this Court to apply intermediate scru-

tiny under Central Hudson Gas & Electric Corp. v.

Public Service Commission of New York, § 2(a) does

not directly advance a substantial governmental in-

terest. 447 U.S. 557, 564-66 (1980); see Sorrell, 564

U.S. at 571-72.

1. Section 2(a) Cannot Be Justified As Pro-

tecting Underrepresented Groups

The government erroneously argues that § 2(a)

protects underrepresented groups from demeaning

messages. Br. 10, 28, 48.

Disapproval of speech or desire to prevent offense

is “classically not a justification” for burdening

speech, much less a substantial interest. Bolger v.

17

Youngs Drug Prods. Corp., 463 U.S. 60, 71—72 (1983)

(alterations omitted); Snyder v. Phelps, 131 5S. Ct.

1207, 1219-20 (2011); Hustler Magazine, Inc. v. Fal-

well, 485 U.S. 46, 55 (1988).

The disparagement clause is not designed to

promote racial or social justice. Congress was not

concerned with protecting underrepresented groups

when it enacted § 2(a) in 1946. Congress instead

worried about “Abraham Lincoln gin” and marks

that disparaged “people of eminence” and institu-

tions like “Harvard” and the “New York Athletic

Club.” Hearings on H.R. 4744 Before the Subcomm.

on Trademarks of the H. Comm. on Patents, 76th

Cong. 18-21 (1939) (Hearings). The statute refers to

all “persons, living or dead,” “beliefs,” or “institu-

tions.” 15 U.S.C. § 1052(a). The government inter-

prets the statute to protect not just minority groups,

but also any well-represented group, including politi-

cians, billionaires, birders, bookworms, blondes, law-

yers, and vegetarians. Gov't Br. 24—25, 46.*

The statute thus extends beyond groups that so-

ciety admires, such as teachers, librarians, and cler-

gy. The statute equally protects racists, white su-

premacists, misogynists, fascists, xenophobes, terror-

ists, and dictators. The government cannot justify

§ 2(a) as combatting racism if the statute protects

racists. Similarly, because § 2(a) applies to “beliefs,”

the statute bars registration of marks that disparage

* The Team agrees with respondent that § 2(a) applies only to

identifiable persons, not to groups as a whole. Resp. Br. 46—53.

At a minimum, principles of constitutional doubt command a

narrowing construction. See Opening Brief of Appellant at 45—

46, Pro-Football, Inc. v. Blackhorse, No. 15-1874 (4th Cir. Oct.

30, 2015); Reply Brief of Appellant at 21-23, Pro-Football, Inc.

v. Blackhorse, No. 15-1874 (4th Cir. Mar. 18, 2016).

18

racism and white supremacy. The same would be

true for marks that disparage racist and white su-

premacist “institutions.”

Section 2(a) does not directly protect underrepre-

sented groups. Disparaging speech abounds on the

Internet and in books and songs bearing govern-

ment-registered copyrights. Amici Blackhorse et al.

(at 20-21) reprint pre-1946 registered racist logos.

But the PTO never cancelled those registrations as

disparaging. The government has not shown that

§ 2(a), as opposed to changed times and the market-

place, prevents similar registrations today or that

comparable marks would return in droves absent

§ 2(a). And civil rights laws, not the Lanham Act,

are designed to prevent such speech from interfering

with access to public accommodations and employ-

ment.

The PTO has registered countless marks that

meet the government’s exceptionally broad definition

of disparagement, i.e., potentially demeaning to even

a small segment of a race, gender, or religious group.

Just for musical bands, the PTO has registered

WHITE ‘TRASH COWBOYS: WIORES FROM HELL;

N.W.A.; CHOLOS ON ACID; REFORMED WiORES; TITk

PoP WHORES; HOOKERS & BLOW; THE ROAST BEEF

CURTAINS; FLEA MARKET HOOKERS; TIE PRICKS; and

BARENAKED LADIES. As to religion, the PTO has reg-

istered marks such as BUDDHA BELLY KITCHEN gran-

ola snacks and KILL THE BUDDHA apparel. The Ap-

pendix contains more examples of disparaging

marks, many of which were registered well after the

PTO refused to register respondent's mark in 2012

and ordered the cancellation of the Redskins regis-

trations in 2014.

19

The government acknowledges (at 52) that “er-

rors may occasionally occur.” Such euphemistic un-

derstatements provide no excuse. In the First

Amendment context, “good enough for government

work” is not a defense. In any event, the examples

are far too numerous to write off as inadvertence.

The government presumably does not know how

many registered marks meet the PTO’s loose defini-

tion of disparagement. Nor does the government in-

dicate what error rate would render its argument

meritless.

2. Section 2(a) Cannot Be Justified As Pre-

venting Government Association

Section 2(a) likewise does not directly further the

government’s interest in preventing its association

with certain marks. Gov’t Br. 11, 28, 36-39, 49—50.

The government offers no evidence that the public

associates registration with the government. It

hardly needs much explanation to conclude that the

public does not associate the government with marks

such as THE HEBREW HILLBILLY: FIFTY SHADES OF OY

Vey; ASS FACE DOLLS; or NAZI WEREWOLVES FROM

OUTER SPACE. But the same is true for all marks.

No one associates the government with the names of

the music bands listed above, nor with CIRCLE JERKS;

DEAD KENNEDYs; SEX PISTOLS; WIMPY DICKS; STEELY

DAN; or LIMP BIZKIT. No one thinks about the gov-

ernment when buying NIKE shoes, surfing GOOGLE,

or watching NATIONAL FOOTBALL LEAGUE games.

Many marks, such as ACLU and NATIONAL RIFLE

ASSOCIATION, represent organizations that regularly

oppose government regulation.

Consumers have no idea whether marks are “reg-

istered” or what that legalese means. “The purchas-

ing public knows no more about trademark registra-

20

tions than a man walking down the street in a

strange city knows about legal title to the land and

buildings he passes.” Application of Nat'l Distillers

& Chem. Corp., 297 F.2d 941, 949 (C.C.P.A 1962)

(Rich, J., concurring); Application of Helene Curtis

Indus., Inc., 305 ¥'.2d 492, 494 (C.C.P.A. 1962) (“We

will not assume any knowledge on the part of the

purchasing public of mere registrations in the Patent

Office[.]”). Mark owners are not required to use the

®, and many (including both respondent and the

Team) do not.

Further, like trademark registrations, patents

are “issued in the name of the United States of

America,” “under the seal of the United States Pa-

tent and Trademark Office,” and must be “signed by

the Director” of the PTO. 35 U.S.C. § 153. Copyright

registrations issue under the “Seal of the United

States Copyright Office” and are signed by the “Reg-

ister of Copyrights, United States of America.” U.S.

Copyright Office, Sample Certification of Registra-

tion, available at http://www.copyright.gov/locs/

certificate. sample-1-21-05.pdf. But no one thinks

that the government approves, or is associated with,

every patented invention or registered copyright.

The government’s argument, moreover, becomes

a self-fulfilling prophecy. No one today thinks that

registration reflects government approval or associa-

tion. But if this Court holds that it does, how will

the government explain its approval of all two mil-

lion registrations for every conceivable good or ser-

vice? See, e.g., App. A. The same would be true for

every copyrighted work or patented invention.

The government’s brief observes that it transmits

the names of registered marks abroad. Br. 10, 12,

22, 24, 28, 37, 39, 50. But not one instance is identi-

21

fied where a foreign country complained to the PTO

about any proposed, existing, or past registration.

Nor has the government asserted that foreign coun-

tries share the PTO’s view of disparagement or that

the PTO considers the views of foreign countries

when registering marks. The statute is not designed

to further foreign policy goals. The statute permits

registrations that disparage foreign countries or even

continents, e.g., MADE IN CHINA, FIXED IN AMERICA;

NUDEAFRICA; and NOTHINGMADEINCHINA.COM. And

the PTO has registered marks such as CRAZY I'TAL-

LANS and THE MEXICAN MAFIA.

3. PTO’s Arbitrary Application of § 2a)

Undercuts the Government’s Asserted

Interests

The government’s wildly inconsistent and arbi-

trary enforcement of § 2(a) further belies the gov-

ernment’s asserted interests. Arbitrariness is inher-

ent in the disparagement clause. The PTO’s Assis-

tant Commissioner presciently informed Congress in

1939 that “the word ‘disparage’ ... is going to cause

a great deal of difficulty in the Patent Office, because

. it is always going to be just a matter of the per-

sonal opinion of the individual parties as to whether

they think it is disparaging.” Hearings at 21.

The PTO explains: “[T)he guidelines for deter-

mining whether a mark is scandalous or disparaging

are somewhat vague and the determination of

whether a mark is scandalous or disparaging is nec-

essarily a highly subjective one.” Jn re In Over Our

Heads, 16 U.S.P.Q.2d 1653, *1 (T.T.A.B. 1990)

(brackets and quotation marks omitted). The PTO

similarly observes that whether a mark is disparag-

ing “is highly subjective and, thus, general rules are

difficult to postulate.” Harjo v. Pro-Football, Inc., 50

22

U.S.P.Q.2d 1705, *35 (T.T.A.B. 1999). Prior registra-

tions that are “similar to the applicant's ... do[] not

bind the [PTO].” In re Heeb Media LLC, 89

U.S.P.Q.2d 1071, *9 (T-T_A.B. 2008).

Not surprisingly, PTO decisions are arbitrary,

unpredictable, and without rhyme or reason. The

governiment cannot explain why REDSKINS disparag-

es Native Americans but the following registered

marks, all with Native American caricature logos, do

not: Rep MAN chewing tobacco; CUIERIKRE RED soft

drinks; BiG CHIEF beef jerky; BIG CHIRF snack foods:

INDIAN MOTORCYCLE apparel and motorcycles; IND1-

AN RIVER TRANSPORT tankers; APACIIE POWERBOATS

apparel; APACHE bikes; EL APACHE bingo cards; FORT

APACHE musical recordings; and ESKIMO JOE'S res-

taurant.

The PTO also cannot explain why the name The

Stants for an al) Asian-American rock band dispar-

ages Asian-Americans but YELLOWMAN for a tattoo-

inspired clothing line founded by an Asian-American

does not. L. Munoz, Wearing Pride on Sleeve, L.A.

Times, Jan. 17, 2008, available at http://articles.

latimes.com/2008/jan/17/business/fi-petermuil 7

(“With his YellowMan brand, (designer Peter] Mui

has taken a slur and turned it on its head.”).

The government acknowledges (at 51) that “su-

perficially similar marks” might be justifiably distin-

guished based on context or the passage of time, but

does not argue that such distinctions explain any

identified inconsistency. The government will not

even say what was a mistake. Should any of the

immediately preceding marks have been registered?

The PTO has registered numerous marks bearing

the word redneck, whose “usage . . . now includes any

racist white.” The Racial Slur Database, www.rsdb.

23

org/search/redneck. Take AMERICAN REDNECK SOCI-

ETY, a social club “promoting the interest of hard-

working, proud Americans”; REDNECK GANGSTA ap-

parel; REDNECK ARMY apparel; REDNECK DEBUTANTE

books; REDNECK WOMAN underwear; REDNECK

CHICKS apparel; REDNECK RECORDS music; REDNECK

stickers; and REDNECK BIKINI swimwear. Were any

of these marks mistakenly registered? All? Some?

Why?

The Federal Circuit rightly “s[aw] no rationale

for the PTO’s seemingly arbitrary registration deci-

sions.” Pet. App. 33a n.7. That the PTO examines

many trademarks does not excuse arbitrariness,

Gov't Br. 51, but rather underscores the immense

consequences. Contrary to the Government’s argu-

ment (id.), moreover, agencies cannot defend against

arbitrary enforcement by preemptively declaring

that they will act arbitrarily. In the face of rampant

inconsistencies, § 2(a)’s disparagement clause fails

Central Hudson. See Greater New Orleans Broad.

Ass'n v. United States, 527 U.S. 173, 190 (1999).

The government observes (at 52) that “erroneous

registrations” may be “corrected through the process

of administration cancellation.” But the Act provides

only for private parties or the Federal Trade Com-

mission (FTC) to initiate cancellation. 15 U.S.C.

§§ 1064, 1067; infra p. 29. To our knowledge, the

FTC—whose mandate is to promote competition—

has never sought to cancel a trademark registration

for being disparaging. And the government cites no

instance where the PTO cancelled a registration sua

sponte for being disparaging or offensive. In other

words, the PTO, on its own initiative, cannot cancel

registrations. Thus, unless and until someone peti.

tions for cancellation, disparaging marks remain reg-

24

istered in perpetuity. lt is oxymoronic, however, to

label registrations government speech if disassocia-

tion substantially depends on the action of private

parties. Either the government has unfettered con-

trol over its own speech, or registration is not gov-

ernment speech.

It is also perverse for the government to invoke

the protection of disadvantaged groups while impos-

ing on those very groups the costly and burdensome

responsibility of cleaning up the registry when the

PTO doesn’t get it right. For instance, women may

have better things to do with their time and money

than explain to PTO officials that BUCKSLUT is a

crude, misogynist reference to oral sex, or that the

acronym in FUPA POUCH is offensive. Nor should

African-Americans have to explain to the PTO that

the word “thug” in ‘THUG PORN or THUG ARMY has a

racial meaning. See The Racially Charged Meaning

Behind the Word Thug, National Public Radio (Apr.

30, 2015), http://www.npr.org/2015/04/30/403362626/

the-racially-charged-meaning-behind-the-word-thug

(“(T)hug today is a nominally polite way of using the

N-word,”).

C. Registration Is Neither Government Speech

Nor a Subsidy

1. The government asserts that “the govern-

ment-speech doctrine ... is implicated here because

owners of registered marks are issued certificates in

the name of the United States, and the government

publishes the marks and transmits registration in-

formation to foreign countries.” Br. 12. But registra-

tions, of which there have been over three million in

total since 1870, have never communicated a gov-

ernment message or been associated with the gov-

ernment. See infra pp. 26-28; cf Walker v. Tex.

25

Div., Sons of Confederate Veterans, Inc., 135 5S. Ct.

2239, 2248 (2015) (state license plates); id. at 2255,

2257, 2261 (Alito, J., dissenting) (noting Texas has

“more than 350” types of specialty plates). Registra-

tion is “designed to facilitate private speech, not to

promote a governmental message.” Legal Servs.

Corp. v. Velazquez, 531 U.S. 533, 542 (2001).

That registration is reflected on a picce of paper

issued by the government is insufficient to convert

private speech into government speech. “If being

listed in a government database or published in a list

of registrations were enough to convert private

speech to government speech, nearly every action the

government takes—every parade permit granted,

every property title recorded, every hunting or fish-

ing license issued—would amount to government

speech.” Pet. App. 45a. “The government could rec-

ord recipients of parade permits in an official data-

base or publish them weekly, thus insulating con-

tent-based grants of these permits from judicial re-

view.” Id. And the government’s position would con-

vert all two million registrations, covering marks

created by a diverse society for countless goods and

services, into government-endorsed speech. See infra

pp. 26—28.

The government’s reliance on Rust v. Sullivan,

500 U.S. 173 (1991), is also misplaced. Rust permits

the government to engage in viewpoint discrimina-

tion when it uses private parties to express the gov-

ernment’s own message. Velazquez, 531 U.S. at 541.

Rust upheld a Title X provision barring clinics re-

ceiving federal funds for family-planning services

from advocating abortion. 500 U.S. at 192-95. Allt-

hough “Rust did not place explicit reliance on the ra-

tionale that the counseling activities of the doctors

26

under Title X amounted to governmental speech;

when interpreting the holding in later cases . . . [the

Court has] explained Rust on this understanding.”

Velazquez, 531 U.S. at 541.

The PTO does not use mark owners “to transmit

specific information pertaining to [the PTO’s] own

program.” Jd. Upholding § 2(a) under Rust would

permit rank viewpoint discrimination. One admin-

istration would be free to cancel registrations for NA.

TIONAL ABORTION FEDERATION and NARAL Pro-

CHOICE AMERICA as disparaging toward pro-life “be-

liefs,” and another administration would be free to

cancel registrations for ABORTION Must END Now

and REAL FEMINISTS ARE STILL PRO-LIFE as disparag-

ing to pro-choice “beliefs.” 15 U.S.C. § 1052(a).

2. Invoking the word “program” almost 90

times in its brief, the government labels trademark

registration a government program to shoehorn the

PTO’s regulation into this Court’s subsidy cases. But

“[t]he Supreme Court has never extended the subsi-

dy doctrine to situations not involving financial bene-

fits.” Autor v. Pritzker, 740 F.3d 176, 183 (D.C. Cir.

2014); accord Dep’t of Tex., Veterans of Foreign Wars

of the U.S. v. Tex. Lottery Comm’n, 760 F.3d 427,

436 (5th Cir. 2014); Bullfrog Films, Inc. v. Wick, 847

F.2d 502, 509 (9th Cir. 1988). The Court’s subsidy

cases involve financial assistance: tax exemptions

(Regan v. Taxation With Representation of Wash.,

461 U.S. 540 (1983)); funding to fight AIDS (Agency

for Int'l Dev. v. Alliance for Open Soc’y Int'l, Inc., 133

S. Ct. 2321 (2013)); and Medicaid reimbursement for

abortion (e.g., Harris v. McCrae, 448 U.S. 297

(1980)). Cases like Davenport v. Washington Educa-

tion Association involved “the unique context of pub-

lic-sector agency-shop arrangements,” where the

27

government, as employer, “act[s} in a capacity other

than as regulator.” 551 U.S. 177, 188, 190 (2007)

(emphasis added); accord Ysursa v. Pocatello Educ.

Ass'n, 555 U.S. 353 (2009).

Trademark registration is just like the regulato-

ry registration of copyrights and patents, and fun-

damentally differs from anti-AIDS funding, Medi-

caid, and tax exemptions. This Court already has

assumed that the patent system is regulatory.

Cleveland, 531 U.S. at 23-24. The government has

no basis for distinguishing the trademark system.

The Lanham Act, just like the Copyright Act and Pa-

tent Act, is not a grant or funding statute. Trade-

mark owners, just like copyright and patent owners,

are neither government employees nor grant recipi-

ents.

The government cites no instance where any

court has treated a self-described “legal proceeding”

(supra p. 11 n.3) as a government subsidy. The reg-

istration process does not operate like a subsidy: any

person who believes that he will be damaged by a

registration may file an opposition with the PTO, 15

U.S.C. § 1063; and either the applicant or opposing

party may seek a trial-like administrative appeal be-

fore the PTO’s Trademark Trial and Appeal Board

(TTAB), id. § 1070, with a subsequent right to judi-

cial review, id. § 1071. Likewise, the benefits con-

ferred by registration are legal rights. Supra p. 11.

A legal right is not a subsicly, as that term has ever

been understood. Legal protections for trademarks

are less of a subsidy than taxpayer-funded police and

fire protection for rallies. The government's position

sweeps within the subsidy doctrine “every benefit or

regulatory program provided by the government.”

Pet. App. 58a.

28

Even were registrations subsidies, § 2(a) is still

unconstitutional because it is viewpoint-based. The

government may not discriminate based on view-

point in the “provision of financial benefits.” Rosen-

berger, 515 U.S. at 834 (citing Regan, 461 U.S. at

548); see, e.g., Velazquez, 531 U.S. at 548-49; NEA v.

Finley, 524 U.S. 569, 587—88 (1998).

The disparagement clause is independently inva-

lid because disparagement is not related to a trace-

mark’s function, operation, and purpose. Disparag-

ing marks prevent consumer confusion and secure to

owners the fruits of their investments every bit as

much as non-disparaging marks. Under the gov-

ernment’s theory, moreover, Congress could withhold

registration based on content that also has nothing

to do with the function of trademarks. The govern-

ment could deny registration for goods it disfavors

(e.g., guns, fast food); services that risk injury (e.g.,

sports, skydiving); goods that appeal to prurient in-

terests (e.g., sex toys, pornography); or marks that

touch upon controversial topics regardless of view-

point (e.g., abortion, gun control).

Section 2(a) also burdens disfavored expressions

in ways that denying subsidies does not. People who

are dented subsidies have “a ready work-around to

maintain private speech without significant disad-

vantage,” whereas “[mjark-holders cannot .. . realis-

tically have two brand names.” Pet. App. 52a. For

instance, the owners of the registered marks DONALD

TRUMP, YO-YO MA, [rZtIAK PERLMAN, TAYLOR SWIPT,

JENNIFER LOPEZ, JAY-Z, ADELi, CHER, MADONNA, and

MARTHA STEWART cannot readily change their

names.

29

D. Section 2(a)’s Application in the Cancellation

Context Is Independently Unconstitutional

The Lanham Act permits a petition for cancella-

tion by “any person who believes that he is or will be

damaged ... by the registration of a mark on the

principal register.” 15 U.S.C. § 1064. An adversarial

proceeding before the TTAB then ensues, id. § 1067,

after which the losing party may seek judicial re-

view, id. § 1071. When a party seeks cancellation of

a registration for being disparaging, the PTO asks

whether the mark was disparaging when registered,

not whether it is disparaging today. Blackhorse v.

Pro-Football, Inc., 111 U.S.P.Q.2d 1080, *10, *28—29

(T.T.A.B. 2014). Even were § 2(a)’s disparagement

clause constitutional for initial refusals to register,

the clause is plainly unconstitutional in the context

of cancellation.

1. Cancellation Does Not Further the Gov-

ernment’s Asserted Interests

The government’s purported interests in protect-

ing the affected group and disassociation from the

mark are nonsensical in the cancellation context.

The PTO never considers the meaning of the mark

today; how the mark impacts the affected group; or

whether any foreign country deems the mark dispar-

aging.

For instance, the PTO granted the petition to

cancel the Redskins registrations not because they

disparage anyone today, but because the marks sup-

posedly disparaged Native Americans 50 years ago,

starting in 1967, when the government first regis-

tered the marks. Jd. at *1. The PTO determined

that the five Native American petitioners opposed

the name, id. at *14, but did not otherwise consider

30

whether any of the other five million Native Ameri-

cans today find the name disparaging. Nor did the

PTO determine what foreign countries today think of

the name.

Cancellation today does not further any legiti-

mate government interest based on Native Ameri-

cans’ perception of the mark a half century ago. To-

day, the vast majority of Native Americans do not

find the name offensive. A Washington Post poll this

year found that “[njine in 10 Native Americans say

they are not offended by the Washington Redskins

name.” J.W. Cox et al., New Poll Finds 9 in 10 Na-

tive Americans Aren’t Offended by Redskins Name,

Wash. Post, May 19, 2016. And “a 2004 poll by the

Annenberg Public Policy Center found the same re-

sult.” Jd. Nor could cancellation conceivably further

any need to disassociate the government from the

Redskins name or to avoid transmitting the name

abroad.

2. Cancellation Imposes Far Greater Bur-

dens on Mark Owners

The burdens imposed by § 2(a) are exponentially

magnified with cancellation. The government invites

anyone who thinks a disparaging mark has been er-

roneously registered to petition the PTO to cancel

the registration. This is an astonishing proposition.

Delegating to over 300 million private citizens the

authority to trigger the cancellation of up to two mil-

lion registrations based on their subjective view of

what is offensive is unconstitutional in its own right.

The First Amendment does not tolerate a “heckler’s

veto” where the most sensitive of listeners dictate the

propriety of speech for the rest of us. E.g., Good

News Club v. Milford Cent. Sch., 533 U.S. 98, 119

(2001); Reno v. ACLU, 521 U.S. 844, 880 (1997).

31

Similarly, “{tlo arm millions of private citizens with

such potent relief ... unacceptably chills speech.”

Brief of the United States at 25, Nike, Inc. v. Kasky,

539 U.S. 654 (2003) (No. 02-575).

Mark owners can reasonably expect that compet-

itors or those who want to infringe a mark may seek

cancellation of a registration because the mark does

not meet the criteria for being a trademark. But it is

a different proposition altogether to expect that any-

one who claims to be offended by a name may seek

cancellation, at any time, even if no one opposes the

name now except the person bringing the petition.

15 U.S.C. § 1064. To our knowledge, of the over

three million trademarks registered since 1870, the

PTO has never granted a petition to cancel any other

registration for being disparaging or offensive. This

bears repeating: the Redskins are the first and only

mark owner that the PTO has retroactively singled

out for cancellation under the disparagement clause

(or even the scandalous clause).

It is mindboggling to think the public can chal-

lenge any and all two million active trademark regis-

trations that may disparage any and all groups (liv-

ing or dead), any and all beliefs, and any and all in-

stitutions. For instance, CAPITALISM SUCKS DONKEY

BALLS, AUTHORITY SUCKS, PESSIMISM SUCKS, WORK

SUCKS, PEOPLE SUCK, DEAD PEOPLE SUCK, CHEATERS

SUCK, NEGATIVE PEOPLE SUCK, and YOU SUCK! are all

registered. DUMB BLONDE and MEN ARE STUPID are

registered too. A challenger need not show any “per-

sonal interest ... beyond that of the general public”

or “actual damage” to “establish standing or to pre-

vail in [a] .. . cancellation proceeding.” TTAB Man-

ual of Practice § 303.03 (June 2016) (quotation

marks omitted).

32

The potential for unfairness is breathtaking.

Section 2(a) vests 300 million private citizens and

PTO officials with unprecedented power to act arbi-

trarily, retroactively, and without warning, regard-

less of the harm to mark owners, brands, or consuim-

ers who trust and rely on brands. Even as applied to

initial refusals to register, §2(a) seriously chills

speech by “creatling) a serious disincentive to adopt

a mark which the government may deem offensive or

disparaging.” Pet. App. 3la. But the threats to

speech are enormous if registrations can be cancelled

after the fact at any time. In the cancellation con-

text, §2(a) would upend decades of “investment-

backed brand development.” /d. Faced with the pro-

spect of cancellation after decades of investment,

people and companies will eschew potentially contro-

versial names.

The Redskins’ case vividly illustrates how perni-

ciously cancellation works. The Team adopted the

Redskins name in 1933, and the PTO registered six

Redskins marks on six separate occasions from 1967

to 1990. On each of the six occasions spanning these

23 years, no member of the public or Native Ameri-

can community objected. No one. And not once did

the PTO suggest that the marks disparaged anyone.

The Team has invested tens of millions of dollars

in advertising and promoting its brand. Pro-

Football, Inc. v. Blackhorse, No. 15-1874 (4th Cir.),

SA12, SA30-31, SA63—69. According to public re-

ports, as of August 2014, the Team was valued at

$2.4 billion, approximately $214 million of which is

attributable to the Redskins brand. Jd., JA240—46.

Yet, the PTO in 2014 cancelled all six registrations

on the theory that the Team’s name may have dis-

paraged some unspecified percentage of Native

33

Americans starting in 1967. In other words, the PTO

announced that it would withdraw the legal protec-

tions the federal government had been providing to

the Team for over fifty years.

But by the time the PTO forced the Team in 2014

to defend its marks, key witnesses were long de-

ceased, and key records were long gone. Had the

Team known in 1967 that the PTO would take this

unprecedented step decades later, the Team could

have conducted contemporaneous surveys of Native

Americans, preserved relevant documents, or se-

cured testimony from witnesses, such as Team own-

ers, Native Americans who played on the Team, for-

mer Presidents, tribal leaders, tribal representatives,

and officials from the Bureau of Indian Affairs who

attended Team games and supported the name.

The government has never explained how arbi-

trary action like this can happen in America. If the

Redskins marks were disparaging by 1967, why did

the PTO repeatedly register them six times over

more than two decades? Why was there no contem-

poraneous objection to the PTO—from anyone? By

1967, the Redskins had won two NFL champion-

ships. Native Americans, like all Americans, pre-

sumably knew of the Team, as did the PTO examin-

ers who repeatedly registered the Redskins marks

over two decades. The government’s brief (at 52)

surmises that the PTO’s workload makes occasional

errors inevitable. But the notion that the PTO acci-

dently registered the same famous mark six times is

not credible, even putting aside the dubious notion

that the PTO was flooded with registration applica-

tions from 1967 to 1990.

In the government’s view, countless private par-

ties can seek cancellation of other registrations. The

34

Redskins name is hardly the only mark free from

controversy. Some of the most controversial marks

touching on race in America are over a century old.

M. Kern-Foxworth, Aunt Jemima, Uncle Ben, and

Rastus: Blacks in Advertising, Yesterday, Today, and

Tomorrow (1994), M.M. Manring, Slave in a Box: The

Strange Career of Aunt Jemima (1998). The ethnic

caricature logos of CHIQUITA and LAND O LAKES are

also ancient. See A. Taube & K. Richards, 15 Racist

Brand Mascots and Logos that Make the Redskins

Look Progressive, Business Insider (June 19, 2014),

http://www. businessinsider.com/15-racist-brand-

mascots-and-logos-2014-6. And the government ar-

gues that the PTO’s delay in sceking cancellation can

never violate due process—no matter the length, cir-

cumstances, or prejudice— because the Lanham Act

provides for a pre-cancellation hearing and judicial

review. Brief of the United States at 48—49, Pro-

Football, Inc. v. Blackhorse, No. 15-1874 (4th Cir.

eb. 4, 2016).

As discussed, countless registered marks refer to

Native Americans, African-Americans, Hispanics,

Asians, Caucasians, women, men, the disabled, and

the elderly in ways that could satisfy the PTO’s ex-

ceptionally broad definition of disparaging. Many

charitable groups have registered marks with names

that are no longer in common use. F.g., UNITED NF.

GRO COLLEGE FUND; NEGRO LEAGUES BASEBALL Mu

SEUM; ASSOCIATION FOR RETARDED CITIZENS. The two

million registered mark owners should not have to

face the risk that private parties will seek cancella-

tion or that the PTO will cancel the registrations of

their valuable trademarks.

35

_** * &

For the above reasons, § 2(a) facially violates the

First Amendment. But in the cancellation context,

the government’s interests are even less defensible,

and the effects on free speech are even more injuri-

ous. Accordingly, no matter the outcome here, this

Court should not foreclose challenges to the dispar-

agement clause as applied to cancellation of existing

registrations.

CONCLUSION

The Court should affirm the decision of the Court

of Appeals for the Federal Circuit.

Respectfully Submitted,

ROBERT L. RASKOPF LISA S. BLATT

Topp ANTEN Counsel of Record

JESSICA A. ROSE ROBERT A. GARRETT

Quinn Emanuel Urquhart STEPHEN K. WIRTH

& Sullivan LLP Arnold & Porter LLP

51 Madison Ave., 601 Massachusetts

22nd Floor Ave., NW

New York, NY 10010 Washington, DC 20001

(212) 849-7000 (202) 942-5000

robertraskopf@ lisa. blatt@aporter.com

quinnemanuel.com

Counsel for Amicus Curiae Pro-Football, Inc.

December 16, 2016

APPENDIX

la

APPENDIX A

The following are examples of sume of the PTO’s

current and live registrations. They are available

through the PTO’s database. See PTO, Trademark

Electronic Search System, http://tmsearch.uspto.gov.

AFRO-SAXONS, apparel

Reg. No. 3726710 (Dec. 15, 2009)

AMERICAN REDNECK SOCIETY, social club

Reg. No. 4062574 (Nov. 29, 2011)

ANAL FANTASY COLLECTION, sex toys

Reg. No. 4507635 (Apr. 1, 2014)

ANAL INTENSIVE, adult entertainment

Reg. No. 2698644 (Mar. 18, 2003)

ANAL RING TOss, live adult entertainment

Reg. No. 2950588 (May 10, 2005)

Ass FACE DOLLS, image database

Reg. No. 4733121 (May 5, 2015)

BABY DADDY INSURANCE, insurance brokerage

Reg. No. 4613011 (Sept. 30, 2014)

BAKED BY A NEGRO, baked goods

Reg. No. 4424120 (Oct. 29, 2013)

BARELY LEGAL XXX, adult entertainment

Reg. No. 3063002 (Feb. 28, 2006)

BARENAKED LADIES, live music, recordings, and

apparel

Reg. No. 2637871 (Oct. 22, 2002)

Reg. No. 2461404 (June 19, 2001)

BETTER THAN SEX PEARL NECKLACE, wine

Reg. No. 5016155 (Aug. 9, 2016)

2a

BiG Tirry BLEND, coffee

Reg. No. 4616854 (Oct. 7, 2014)

BriTcH, handbags

Reg. No. 4822287 (Sept. 29, 2015)

BitcH DON’T KILL MY VIBE, apparel

Reg. No. 4653950 (Dec. 9, 2014)

BITCH FACE, cosmetics

Reg. No. 3819705 (July 13, 2010)

BiTctl RELAX, apparel

Reg. No. 4559906 (July 1, 2014)

BITCH SLAP, movies

Reg. No. 3998853 (July 19, 2011)

Brrcuy GAY, apparel

Reg. No. 4800962 (Aug. 25, 2015)

BLACK MAN WITIt A GUN, website and podcast

Reg. No. 4320289 (Apr. 16, 2013)

BLACKGIRLSDOPORN.COM, adult entertainment

Reg. No. 4718284 (Apr. 7, 2015)

BLAQMAN RE CORDS, music

Reg. No. 4295071 (Feb. 26, 2013)

BONERBAIT, apparel

Reg. No. 5035019 (Sept. 6, 2016)

Boos AS BEER HOLDERS, adult entertainment

Reg. No. 4334788 (May 14, 2013)

Boory CALL, sex toys

Reg. No. 4243279 (Nov. 13, 2012)

BOUND GANGBANGS, adult entertainment

Reg. No. 4618921 (Oct. 7, 2014)

3a

Boys ARE STUPID, THROW ROCKS AT THEM, apparel

Reg. No. 4173367 (July 17, 2012)

BUCKSLUT, apparel

Reg. No. 4942407 (Apr. 19, 2016)

BUDDHA BELLY KITCHEN, snack foods

Reg. No. 4777244 (July 21, 2015)

BUSH PANTY, adult novelty items

Reg. No. 4739893 (May 19, 2015)

BUTT MACHINE Boys, adult entertainment

Reg. No. 4902952 (Feb. 16, 2016)

Butt NAKED SHOTZ GAME, adult board game

Reg. No. 4608831 (Sept. 23, 2014)

Butt NAKED TOKE GAME, adult board game

Reg. No. 4751015 (June 9, 2015)

CAPTALN CANNABIS, comic books

Reg. No. 4782920 (July 28, 2015)

CELEBRETARDS, entertainment services

Reg. No. 3751638 (Feb. 23, 2010)

CHEAP AZZ BROTHA, online comic strips

Reg. No. 4908357 (Mar. 1, 2016)

CHEAP BASTARD, travel guides

Reg. No. 3268727 (July 24, 2007)

CHOLOS ON ACID, live music

Reg. No. 49779568 (June 14, 2016)

CIRCLE JERKS, live music, recordings, and apparel

Reg. No. 3323316 (Oct. 30, 2007)

COLLEGE DILDOS, sex toys

Reg. No. 4704544 (Mar. 17, 2015)

4a

CONTEMPORARY NEGRO, apparel

Reg. No. 4186070 (Aug. 7, 2012)

COOCH COACH, online magazine

Reg. No. 4573557 (Feb. 11, 2014)

CRAZY BITCH TOYS, sex toys

Reg. No. 4886337 (Jan. 12, 2016)

CRIPPLED BASTARD CLOTHING CBC, apparel

Reg. No. 3102969 (June 13, 2006)

CRIPPLED OLD BIKER BASTARDS, apparel

Reg. No. 4263288 (Dec. 25, 2012)

DIRTY EVERYDAY SLANG FROM “WHAT’S UP?” To “F*%#

OFF!”, books

Reg. No. 3928097 (Mar. 8, 2011)

DAGO SWAGG, apparel

Reg. No. 4347624 (June 4, 2013)

DEATH BY ORGASM, sex toys

Reg. No. 3910580 (Jan. 25, 2011)

DELIBERATE ORGASM, adult entertainment

Reg. No. 3727671 (Dec. 22, 2009)

DicK BALLS, apparel

Reg. No. 4512705 (Apr. 8, 2014)

DirRTY CROTCH, underwear

Reg. No. 4840419 (Oct. 27, 2015)

DirRTY GHETTO KIDS, skateboards and appare!

Reg. No. 3859749 (Oct. 12, 2010)

Reg. No. 3859748 (Oct. 12, 2010)

DirRTY HOOKER, bumper stickers

Reg. No. 4727386 (Apr. 28, 2015)

Dirrty LITTLE BASTARDS, apparel

Reg. No. 4395877 (Sept. 3, 2013)

5a

DIRTY WHOOORE CLOTHING COMPANY, apparel

Reg. No. 4625425 (Oct. 21, 2014)

DONKEY PIss, tequila

Reg. No. 4113159 (Mar. 13, 2012)

DOUCHEBAG REHAB, merchandise and apparel

Reg. No. 5053050 (Oct. 4, 2016)

DRTYBTCH, entertainment services

Reg. No. 4617261 (Oct. 7, 2014)

DRUNK ASS BITCHES, appare!

Reg. No. 4171393 (July 10, 2012)

DUMB BLONDE, hair products

Reg. No. 2601964 (July 30, 2002)

DUMB BLONDE, beer

Reg. No. 3983953 (June 28, 2011)

DYKE NIGHT, events and entertainment services

Reg. No. 4146588 (May 22, 2012)

EDIBLE CROTCHLESS GUMMY PANTIES, underwear

Reg. No. 2859081 (June 29, 2004)

EGOTESTICLE, education services and apparel

Reg. No. 4618149 (Oct. 7, 2014)

Reg. No. 4614980 (Sept. 30, 2014)

EROS SHEMALE ESCORTS, website for escort services

Reg. No. 4208127 (Sept. 18, 2012)

Reg. No. 4203955 (Sept. 11, 2012)

Reg. No. 4203954 (Sept. 11, 2012)

EWHIP.COM, personal sexual lubricants, digital

media, and adult sexual stimulation aids

Reg. No. 4804653 (Sept. 1, 2015)

F’D UP, apparel

Reg. No. 4495813 (Mar. 11, 2014)

6a

FART RIGHT ANAL STRIPS, adult novelty items

Reg. No. 4435481 (Nov. 19, 2013)

FAT GIRL BEER, beer

Reg. No. 5069756 (Oct. 25, 2016)

FETISH FANTASY EXTREME, sex toys

Reg. No. 4088908 (Jan. 17, 2012)

FETISH FANTASY GOLD, sex toys

Reg. No. 4672795 (Jan. 13, 2015)

FETISH FANTASY SERIES, sex toys

Reg. No. 3556369 (Jan. 6, 2009)

FETISH PLEASURE PLAY, sex toys

Reg. No. 4722732 (Apr. 21, 2015)

Reg. No. 4683056 (Feb. 3, 2015)

FLEA MARKET HOOKERS, live music

Reg. No. 4913848 (Mar. 8, 2016)

FRATERNITY DILDOS, sex toys

Reg. No. 4704546 (Mar. 17, 2015)

FREE ORGASMS!, sex toys

Reg. No. 4250231 (Nov. 27, 2012)

FREE THE NIPPLE, apparel

Reg. No. 4626305 (Oct. 21, 2014)

FUPA Pouch, fanny pack

Reg. No. 5022590 (Aug. 16, 2016)

FUSTERCLUCK MAD IN THE USA, sporting events

Reg. No. 4477536 (Feb. 4, 2014)

FYBD FIND YouR BABY DADDY, child-support-

collection services

Reg. No. 4300185 (Mar. 12, 2013)

GANGSTER PIMPIN, apparel

Reg. No. 4879861 (Jan. 5, 2016)

7a

GHETTO Booty, adult entertainment

Reg. No. 2604817 (Aug. 6, 2002)

GHETTO STYLE CLOTHING, apparel

Reg. No. 1987741 (July 16, 1996)

GIRLSDOPORN.COM, adult entertainment

Reg. No. 4811839 (Sept. 15, 2015)

Reg. No. 4557728 (June 24, 2014)

G-MARKS THE SPOT, sex toys and online marketplace

Reg. No. 4347566 (June 4, 2013)

Reg. No. 3074265 (Mar. 28, 2006)

GRINGO BBQ, food delivery services

Reg. No. 4301893 (Mar. 12, 2013)

GRINGO STYLE SALSA, salsa

Reg. No. 4252304 (Dec. 4, 2012)

GROW A PAIR, merchandise and apparel

Reg. No. 4900231 (Feb. 16, 2016)

G-SPOT ACTIVATOR, sex toys

Reg. No. 4246931 (Nov. 20, 2012)

GUYBRATOR, sex toys

Reg. No. 4865256 (Dec. 8, 2015)

GYPSIES AND THIEVES, apparel

Reg. No. 4978427 (June 14, 2016)

HALF-BREED, hats

Reg. No. 2108617 (Oct. 28, 1997)

LIALF BREED, live music

Reg. No. 4401483 (Sept. 10, 2013)

HANDICRAP, education and charitable services

Reg. No. 4323416 (Apr. 23, 2013)

HAUTE BUTCH, apparel

Reg. No. 4343990 (May 28, 2013)

8a

HISLUT, dating services

Reg. No. 4153920 (June 5, 2012)

HOME OF THE G Spot, apparel

Reg. No. 4723599 (Apr. 21, 2015)

HOMO A Go Go, entertainment services

Reg. No. 3889915 (Dec. 14, 2010)

HOMOACTIVE, online marketplace for adult enter-

tainment

Reg. No. 3806399 (June 22, 2010)

HOMORODEO, adult entertainment

Reg. No. 4343157 (May 28, 2013)

HOOCHIE MAMA BBQ RvB, dry rub

Reg. No. 4555477 (June 24, 2014)

HOOKERS & BLOW, live music and apparel

Reg. No. 3582446 (Mar. 3, 2009)

HOT OCTOPUSS, sex toys, anti-premature ejaculation

creams, and apparel

Reg. No. 4630594 (Nov. 4, 2014)

I CLEAN I JERK AND I HAVE A NICE SNATCH, apparel

Reg. No. 4798333 (Aug. 25, 2015)

I LOVE VAGINA, apparel

Reg. No. 3364871 (Jan. 8, 2008)

I WORK HARD BITCH, apparel

Reg. No. 4575506 (July 29, 2014)

JERSEY SHORE Ho’s: SEX ON THE BEACH, television se-

ries

Reg. No. 3939860 (Apr. 5, 2011)

JiZZ, underwear

Reg. No. 4661382 (Dec. 30, 2014)

9a

KILL THE BUDDHA, apparel

Reg. No. 4641100 (Nov. 18, 2014)

KINKY BITCH, sex toys and apparel

Reg. No. 4291384 (Feb. 19, 2013)

Reg. No. 3612245 (Apr. 28, 2009)

KLITORIS, sex toys

Reg. No. 4398345 (Sept. 10, 2013)

LATINA PORN EXPOSED, adult entertainment

Reg. No. 4353767 (Jun 18, 2013)

LAUGHING MY VAGINA OFF, television series

Reg. No. 4401056 (Sept. 10, 2013)

LADYGASM, sex toys

Reg. No. 4097165 (Feb. 7, 2012)

LICENSED SERIAL KILLER, apparel

Reg. No. 3935945 (Mar. 22, 2011)

LIMP BIZKIT, live music, recordings, merchandise,

and apparel

Reg. No. 3922850 (Feb. 21, 2011)

Reg. No. 2621762 (Sept. 17, 2002)

Reg. No. 2485894 (Sept. 4, 2001)

Reg. No. 2345604 (Apr. 25, 2000)

Reg. No. 2343660 (Apr. 18, 2000)

LUBED.COM RAW/WET/SEX, adult entertainment

Reg. No. 5063373 (Oct. 18, 2016)

MAD MAX WHITE TRASH BASH, entertainment

services

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QUEERS OF COMEDY, entertainment

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REDNECK, stickers

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