throbber
No. 15-1293
`================================================================
`
`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,
`
`v.
`
`SIMON SHIAO TAM,
`
`Petitioner,
`
`Respondent.
`
`---------------------------------  ---------------------------------
`
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Federal Circuit
`
`---------------------------------  ---------------------------------
`
`AMICUS BRIEF FOR ERIK BRUNETTI
`IN SUPPORT OF RESPONDENT
`
`---------------------------------  ---------------------------------
`
`JOHN R. SOMMER
` Counsel of Record
`DEVON A. BECKWITH
`17426 Daimler Street
`Irvine, California 92614
`(949) 752-5344
`sommerjohnr@gmail.com
`Counsel for Amicus Curiae
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`

`
`i
`
`TABLE OF CONTENTS
`
`3
`
`Page
`TABLE OF CONTENTS ......................................
`i
`TABLE OF AUTHORITIES .................................
`iii
`INTEREST OF AMICUS .....................................
`1
`SUMMARY OF ARGUMENT ..............................
`2
`ARGUMENT ........................................................
`3
`
`I. SECTION 2(A) IS UNCONSTITUTIONAL
`AS TO TRADEMARKS BECAUSE IT WOULD
`BE UNCONSTITUTIONAL TO DENY COPY-
`RIGHT REGISTRATION BASED UPON
`CONTENT ..................................................
` II. DENIAL OF TRADEMARK REGISTRA-
`TION MAKES USE IMPRACTICAL ..........
` III. BEFORE HOLDING SECTION 2(A) CON-
`STITUTIONAL THE COURT SHOULD
`CONSIDER BROADER IMPLICATIONS
`BEYOND TRADEMARKS ..........................
`A. If Section 2(a) Is Constitutional It Opens
`The Door To Widespread Governmental
`Discrimination Against Unpopular Mes-
`sages .....................................................
`B. Section 2(a) Undermines One Of The
`Purposes Of The Lanham Act: The Pro-
`tection Of The Interests Of Trademark
`Owners ................................................. 10
`C. Holding Section 2(a) Constitutional Would
`Put The Government In An Impossible
`Quagmire Of Selecting Among Compet-
`ing Viewpoints ...................................... 11
`
`5
`
`7
`
`8
`
`
`
`

`
`ii
`
`TABLE OF CONTENTS – Continued
`
`Page
`D. The First Amendment Protects The Un-
`popular ................................................. 14
`CONCLUSION ..................................................... 15
`
`
`
`
`
`

`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Bad Frog Brewery v. New York State Liquor Au-
`thority, 134 F.3d 87 (2d Cir. 1998) ............................ 8
`Cohen v. California, 403 U.S. 15 (1971) ..................... 12
`In re Brunetti, Serial No. 85310960, 2014 WL
`3976439 (T.T.A.B. Aug. 1, 2014) ............................ 1, 4
`In re Lamson Oil Co., 6 USPQ2d 1041 (T.T.A.B.
`1987) ........................................................................ 12
`In re Tam, 808 F.3d 1321 (Fed. Cir. 2015) ............ 1, 2, 3
`Kalman v. Cortes, 723 F. Supp. 766 (E.D. Pa.
`2010 ........................................................................... 8
`Pro-Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir.
`2005) ........................................................................ 11
`Sambo’s Restaurants, Inc. v. City of Ann Arbor,
`663 F.2d 686 (6th Cir. 1981) ...................................... 9
`Texas v. Johnson, 491 U.S. 397 (1989) ........................ 14
`
`STATUTES
`15 U.S.C. §1057(b) ......................................................... 5
`15 U.S.C. §1060(a)(4) .................................................... 6
`15 U.S.C. §1065 ........................................................... 11
`15 U.S.C. §1072 ............................................................. 6
`15 U.S.C. §1115(a) ......................................................... 5
`15 U.S.C. §1121(a) ......................................................... 6
`15 U.S.C. §1121(b) ......................................................... 6
`
`
`
`

`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`15 U.S.C. §1141(a) ......................................................... 6
`28 U.S.C. §1331 ............................................................. 6
`
`OTHER AUTHORITIES
`https://en.wikipedia.org/wiki/Colored ........................ 11
`http://time.com/2894357/redskins-trademark-
`indian-interactive/ ................................................... 10
`Urbandictionary.com .................................................. 10
`www.trademark-clearinghouse.com ............................. 6
`
`
`
`
`

`
`1
`
`INTEREST OF AMICUS1
`Amicus curiae Erik Brunetti is the appellant in a
`
`case pending before the Federal Circuit presenting
`a nearly identical issue as in this case. See In re Bru-
`netti, CAFC No. 15-1109 (Fed. Cir. Jan. 21, 2016); the
`government discussed Brunetti in footnote 6 on page
`23 of Petitioner’s merits brief. Brunetti’s application
`for a federal trademark registration for FUCT was re-
`fused under Section 2(a) of the Lanham Act as “vulgar.”
`The United States Patent & Trademark Office (“PTO”)
`incorrectly interpreted the prohibition against “scan-
`dalous” trademarks in Section 2(a) to include “vulgar”
`trademarks, but that issue is not before this Court.
`Brunetti appealed to the Trademark Trial and Appeal
`Board where the refusal was upheld. See In re Bru-
`netti, Serial No. 85310960, 2014 WL 3976439 (T.T.A.B.
`Aug. 1, 2014).
`
`Brunetti asserts the “scandalous” prohibition in
`
`Section 2(a) is an unconstitutional infringement on
`free speech. Brunetti’s appeal was argued before the
`Federal Circuit a month after In re Tam, 808 F.3d 1321
`(Fed. Cir. 2015), to a panel consisting of Judge Moore
`(author of the majority en banc opinion in Tam), Judge
`Dyk (author of a concurring and dissenting opinion in
`
`
`1 The parties in this case have consented to the filing of this
`
`brief. Copies of the blanket consent letters of the parties are on
`file with this Court. This brief was not authored in whole or in
`part by counsel for any party. No one other than the amicus curiae
`or its counsel made a monetary contribution to preparing or sub-
`mitting this brief.
`
`
`
`

`
`2
`
`Tam) and Judge Stoll. It appears that the Federal Cir-
`cuit is waiting for this Court’s decision in Tam before
`deciding Brunetti. While it is possible that one of the
`Section 2(a) “disparaging” (in Tam) and “scandalous”
`(in Brunetti) prohibitions could survive while the other
`is unconstitutional, the issues are closely related. Ac-
`cordingly, Brunetti is addressing some key matters
`that were not adequately briefed by the parties or
`other amici.
`
`---------------------------------  ---------------------------------
`
`SUMMARY OF ARGUMENT
`If it would be unconstitutional to deny copyright
`
`registration based upon content, then it would be un-
`constitutional to deny trademark registration based
`upon the content of the mark.
`
`Although Respondent argues that denial of federal
`
`trademark registration is significant, it overlooks some
`very important consequences of that denial. There is
`a reason why virtually all successful trademarks are
`registered: the denial of registration makes it ex-
`tremely difficult to use and protect that trademark.
`
`The broader implications of holding Section 2(a)
`
`constitutional have not been adequately addressed. If
`Section 2(a) is constitutional, then any government (lo-
`cal, state or federal) could constitutionally prohibit the
`advertising, licensing or sale of any product or service
`that such government deems offensive. Any govern-
`ment could deny permits or licenses which prevent a
`
`
`
`

`
`3
`
`disfavored viewpoint from being effectively dissemi-
`nated. Section 2(a) gives the majority, or a substantial
`composite of the disparaged group, a veto over what
`marks are used, even if the trademark owner seeks to
`raise social or political issues.
`
`---------------------------------  ---------------------------------
`
`ARGUMENT
`Section 2(a)’s provision, allowing the government
`
`to refuse trademark registration because a mark is un-
`popular is an invalid infringement of the First Amend-
`ment’s guarantee of the right to free speech. So the
`prohibition against registering disparaging or scandal-
`ous marks should be held invalid.
`
`
`I. SECTION 2(A) IS UNCONSTITUTIONAL AS
`TO TRADEMARKS BECAUSE IT WOULD
`BE UNCONSTITUTIONAL TO DENY COPY-
`RIGHT REGISTRATION BASED UPON CON-
`TENT
`An analogy to copyright shows why Section 2(a) is
`
`unconstitutional as to trademarks. During the Federal
`Circuit oral argument in Tam, it seemed assumed that
`it would be unconstitutional for the government to
`deny copyright registration based upon content. Ami-
`cus agrees. In fact, the Copyright Office grants regis-
`trations for pornography, hate speech and nearly every
`other type of speech. Unless trademarks differ from
`copyrights in some relevant way, then Section 2(a) is
`likewise unconstitutional.
`
`
`
`

`
`4
`
`The distinction offered by the government is that
`
`trademarks are commercial speech. Both copyright
`and trademark protect the commercial rights of the
`owner, including controlling the use of the work or
`mark, or to obtain compensation for unauthorized use.
`Both copyright and trademark range from the purely
`commercial to core political speech. Copyright protects
`everything from the most “core” speech such as politi-
`cal and social discourse, to the most mundane commer-
`cial products (the “0s” and “1s” of software). Likewise,
`trademarks can range from the purely commercial to
`core political speech, such as STOP THE ISLAMIZA-
`TION OF AMERICA. The government is under the
`misapprehension that trademarks only identify com-
`mercial sources and are commercial speech. See Peti-
`tioner’s brief, at page 48. However, trademarks often
`identify social, charitable, political or other non-
`commercial organizations. And trademarks often have
`a significant communicative function about the trade-
`mark owner’s opinions and goals. In the case of this
`Amicus, Brunetti’s trademark is FUCT and it was re-
`fused by the PTO as vulgar. However, to the extent it
`has a meaning, it is FRIENDS U CAN’T TRUST. The
`T.T.A.B. decision affirming the refusal to register was
`explicitly based upon Brunetti’s alleged “assaults on
`American culture[,] critique capitalism, government,
`religion and pop culture.” In re Brunetti, Serial No.
`85310960, 2014 WL 3976439 (T.T.A.B. Aug. 1, 2014),
`at page 3. In other words, the T.T.A.B. refused to regis-
`ter his trademark because of Brunetti’s core political
`speech.
`
`
`
`

`
`5
`
`Is there some other difference between the copy-
`
`right and the trademark statutes that would allow one
`to be constitutional and the other not? In short, no.
`Both are recording systems; once the applicant com-
`plies with all requirements the registration ensues.
`The government makes no substantive evaluation of
`the copyrighted work or the trademark. The govern-
`ment does not approve or edit the work or the mark.
`For both copyright and trademark, it is not practical to
`enforce the owner’s rights without registration. The
`First Amendment would not permit the government to
`refuse copyright registration due to content; ergo, it is
`not constitutional for the government to refuse regis-
`tration of a trademark based upon its content.
`
`
`II. DENIAL OF TRADEMARK REGISTRATION
`MAKES USE IMPRACTICAL
`The government asserts it is not prohibiting
`
`speech because it is possible to use a trademark even
`if not registered. However, the adverse consequences of
`denial of federal trademark registration are so severe
`that use of such trademarks is impractical. Respon-
`dent’s Brief notes at page 19 some of the consequences
`suffered by a person who is unable to obtain a fed-
`eral registration. Those consequences are significant
`enough. Without a federal registration, the trademark
`owner is denied the prima facie evidence of ownership
`of the trademark and her exclusive right to use the
`mark. 15 U.S.C. §§1057(b), 1115(a). So, she has to prove
`ownership and secondary meaning in every case. With-
`out a federal registration, there is no constructive
`
`
`
`

`
`6
`
`nationwide use, so the trademark user is always at risk
`of some third party commencing use of the mark in
`some other part of the nation. Id. §1072. Without a fed-
`eral registration, the trademark owner cannot use the
`“intent-to-use” provisions that make the application
`date the constructive first use date. The constructive
`use date allows the owner to get its application ap-
`proved prior to the product launch. It also prevents
`third parties from hearing of the trademark and ap-
`propriate the mark by rushing to market first. These
`are sufficient to show that the government is placing
`an unwarranted burden on disfavored speech.
`
`Not mentioned in Respondent’s Brief are other sig-
`
`nificant adverse consequences. Without a federal reg-
`istration, a trademark owner cannot record a security
`interest with the PTO, making it difficult to obtain fi-
`nancing. Id. §1060(a)(4). Without a federal registra-
`tion, it is difficult to sell a brand because the owner
`does not have any concrete evidence of ownership to
`show prospective purchasers. Without a federal trade-
`mark registration, a trademark owner based in the
`United States cannot take advantage of the Madrid
`Protocol, a treaty allowing nationals of the United States
`to obtain trademark protection in other countries
`using the World Intellectual Property Organization.
`Id. §1141(a). The Madrid Protocol cuts the cost of for-
`eign trademark filings by about half. Federal subject
`matter jurisdiction is assured with a federal registra-
`tion. 15 U.S.C. §1121(a) and 28 U.S.C. §1331. Local gov-
`ernments are prohibited from requiring alteration of
`registered marks. 15 U.S.C. §1121(b). Non-governmen-
`tal agencies, such as Internet auction websites and the
`
`
`
`

`
`7
`
`Internet domain name pre-registration service (www.
`trademark-clearinghouse.com) require proof of owner-
`ship of a trademark before cancelling the auctions for
`counterfeit merchandise, or to block others from using
`the trademark as a domain name. Usually that proof
`is a federal trademark registration.
`
`The package of rights that go with federal regis-
`
`tration are so significant that the denial of federal reg-
`istration is the practical equivalent of prohibition of
`use. There is a reason almost every famous trademark
`is registered, and why unregistered trademarks are
`rarely successful. It is not practical to build a success-
`ful brand without federal registration. In short, if the
`government can withhold trademark registration, the
`brand is only allowed to speak in a remote part of Hyde
`Park, but not at Speakers’ Corner where the audience
`is.
`
`
`III. BEFORE HOLDING SECTION 2(A) CON-
`STITUTIONAL THE COURT SHOULD CON-
`SIDER BROADER IMPLICATIONS BEYOND
`TRADEMARKS
`This Court should consider the astounding impli-
`
`cations of holding Section 2(a) constitutional. The im-
`plications go far beyond whether a federal trademark
`registration is issued.
`
`
`
`
`
`
`

`
`8
`
`A. If Section 2(a) Is Constitutional It Opens
`The Door To Widespread Governmental
`Discrimination Against Unpopular Mes-
`sages
`Although this case only involves the question of
`
`whether Section 2(a) allows refusal or cancellation of
`trademarks with unpopular meanings, the Court will
`establish a precedent that will apply by analogy to
`other licensing areas. In the past, governments have
`tried to deny benefits or licenses because a trademark
`is unpopular.
`
`If Section 2(a) is constitutional, then it follows that
`
`Congress could amend the Copyright Act to deny
`copyright registration to disparaging works. Congress
`could also prohibit transportation in commerce of
`goods and services bearing trademarks that have been
`refused. The federal government could refuse broad-
`cast licenses for TV or radio stations if the corporate
`name is disparaging. Any level of government could
`deny licenses based upon the government’s dislike of
`the applicant’s trademark. In Bad Frog Brewery v. New
`York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998),
`New York refused permission for a beer company to
`use a picture of a frog. The Second Circuit held that
`the prohibition of use of the beer company’s label vio-
`lated the First Amendment. In Kalman v. Cortes, 723
`F. Supp. 766 (E.D. Pa. 2010), Pennsylvania refused to
`register I Choose Hell Productions LLC as an entity
`name, due to a state statute that barred corporate
`names containing “[w]ords that constitute blasphemy,
`profane, cursing or swearing or that profane the Lord’s
`
`
`
`

`
`9
`
`name.” The district court held the statute unconsti-
`tutional. But, if Section 2(a) is constitutional, states
`could refuse corporate names because they are per-
`ceived as disparaging or scandalous. This means states
`could make it impossible for unpopular political, social
`and religious groups to register their names.
`
`If Section 2(a) is constitutional, states and cities
`
`could refuse sales tax permits, business licenses or
`even occupancy permits based upon the name of the
`applicant. This is not mere conjecture: a city refused
`permits for a Sambo’s restaurant because its trade-
`mark logo was deemed offensive to African-Americans.
`Sambo’s Restaurants, Inc. v. City of Ann Arbor, 663 F.2d
`686 (6th Cir. 1981). Such refusal was held unconsti-
`tutional. But if Section 2(a) is constitutional, such
`decisions by local governments would be lawful. Local
`governments, depending on whether liberal or con-
`servative, could deny organizations (whether it be the
`NRA or Planned Parenthood, or some smaller organi-
`zation with an edgier name, for example Black Lives
`Matter) licenses (including building permits, sales
`tax authorizations, business licenses or occupancy per-
`mits), thus effectively preventing them from function-
`ing in such localities. Certainly, it would follow that the
`District of Columbia could prohibit the sale of “Red-
`skins” merchandise. If Section 2(a) is constitutional,
`there would seem to be no reason why a city could not
`entirely prohibit the sale of such products anywhere in
`its jurisdiction.
`
`
`
`

`
`10
`
`The logical consequences of a finding that Section
`
`2(a) is constitutional illustrate why Section 2(a) is an
`unconstitutional burden on speech.
`
`
`
`B. Section 2(a) Undermines One Of The
`Purposes Of The Lanham Act: The Pro-
`tection Of The Interests Of Trademark
`Owners
`The trademark registration system was designed
`
`to protect the public from confusion. It was also in-
`tended to protect the trademark owner’s investment.
`As mentioned above, without federal registration, a
`trademark owner’s ability to protect its mark is se-
`verely limited. However, there is a more significant
`problem. Acceptable names for ethnic groups or their
`members change over time. “Eskimo” is now consid-
`ered “offensive” (see Google definition) or “derogatory”
`(per Urbandictionary.com). That means the beloved
`snack ESKIMO PIE could not be registered now
`(which would be needed if the registration should acci-
`dentally lapse, if registration is needed in different
`form or for other types of goods). What about the hun-
`dreds of registrations for INDIAN or depicting Native
`Americans (on motorcycles, clothing and smoking prod-
`ucts)?
`http://time.com/2894357/redskins-trademark-
`indian-interactive/. It is possible that many could be
`cancelled. The culturally acceptable terms for African-
`Americans have evolved from Colored, Negro, Black, to
`African-American. NAACP cannot obtain any new reg-
`istrations because “[i]n the 21st century, ‘colored’ is gen-
`erally regarded as an offensive term.” https://en.wikipedia.
`
`
`
`

`
`11
`
`org/wiki/Colored. Negro is “dated, offensive” according
`to the Google definition, so that would mean that
`United Negro College Fund cannot now register its
`name.
`
`The Lanham Act provides that, after five years, a
`
`registration may become “incontestable” under Section
`15. 15 U.S.C. §1065. However, Section 15 excludes from
`its protection challenges under Section 2(a). So, no
`mark, no matter how old or how long it has been used,
`is safe from a Section 2(a) challenge. Nor does equity
`provide any protection for established rights. Laches
`does not start until the person seeking cancellation has
`standing to sue, i.e., becomes eighteen years old. Pro-
`Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir. 2005). So,
`any group, by selecting a young person who has just
`turned eighteen as the petitioner, could file a cancella-
`tion action and that claim would be timely.
`
`Does it make sense to have established brands and
`
`institutions be subject to attack after decades of un-
`objected usage? Does not the First Amendment give
`people and organizations the right to call themselves
`whatever they want, even if some people might be of-
`fended? Section 2(a) should be invalidated.
`
`
`
`C. Holding Section 2(a) Constitutional Would
`Put The Government In An Impossible
`Quagmire Of Selecting Among Compet-
`ing Viewpoints
`The saying is, “be careful what you wish for, because
`
`you may get it.” The government cannot seriously want
`
`
`
`

`
`12
`
`to be selecting among competing political, social, reli-
`gious, ethnic and other groups and viewpoints. Yet, if
`the PTO is serious about prohibiting registration of
`marks that offend people (because disparaging, scan-
`dalous, immoral or vulgar), then that would become its
`impossible task. That it is impossible can be shown by
`actual decisions of examining attorneys. The trade-
`mark MILF has been approved 23 times, but refused
`20 times. Marks including each of the following have
`been both approved and refused: ANAL, ASS, BITCH,
`COCK, POTHEAD, SHIT, SLUT, WHORE. Words
`are sometimes approved by the PTO and sometimes
`refused: DAGO, HEEB, INJUN and SQUAW. CUM
`TOGETHER has been both approved and refused.
`DYKES ON BIKES and DYKE NIGHT have been ap-
`proved, while 2 DYKES MINIMUM was refused.
`
` Misspellings are disregarded in determining what
`trademarks mean. In re Lamson Oil Co., 6 USPQ2d
`1041 (T.T.A.B. 1987) (finding TRUCOOL and TUR-
`COOL confusingly similar in appearance). So how is it
`that FCUK is registrable but FUCT is not? A man can
`wear a jacket into a courthouse that says “Fuck the
`Draft” (Cohen v. California, 403 U.S. 15 (1971)), but he
`cannot register such term as a trademark for his or-
`ganization if Section 2(a) is constitutional.
`
`In evaluating trademarks, the PTO considers the
`
`mark’s meaning. No one mistakes what WTF, PHUC
`and F*WORD refer to, so why are they registered when
`other marks including “fuck” are not. KKK, N*WORD
`and SLAVE are all registered. HOMOPHOBIA with X
`
`
`
`
`
`

`
`13
`
`is registered while I’M COMFORTABLE WITH MY
`HOMOPHOBIA was refused. THE DEVIL IS A DEM-
`OCRAT was approved while HAVE YOU HEARD
`SATAN IS A REPUBLICAN was refused. REDMAN,
`INDIAN, ESKIMO, CRACKER, RUSTLER, HONKY,
`WHITEY and WASP have all been approved, while
`there is little doubt that at least a portion of the refer-
`enced groups in question (Native Americans, Southern
`whites, Anglo-Saxon Protestants, etc.) would consider
`these terms disparaging.
`
`In the context of religion, the PTO’s problems get
`
`even more complicated because free exercise and non-
`entanglement are involved. The majority of Christians
`would find devil worship to be offensive, but what
`about the rights of Wiccans? DEVIL and WICCAN
`have been approved. Junipero Serra was recently
`made a saint by the Catholic Church. But Native
`Americans assert that Serra committed cultural geno-
`cide. The Virgin Mary and saints in general are seen
`differently by Catholics and some Protestants. So,
`does the PTO take sides when it is asked to register
`MADONNA, LA VIRGEN DE GUADALUPE, or other
`saints’ names? What about break-away denomina-
`tions? Does the PTO take sides just because a majority
`is offended by a smaller group’s use of a name, e.g.,
`OLD CATHOLIC CHURCH IN THE UNITED STATES?
`Should churches have the ability to register their
`names as trademarks subject to the will of a group or
`a majority?
`
`In the context of social and political discourse, it is
`
`unlikely that there will be a consensus about abortion,
`
`
`
`

`
`14
`
`gun control, immigration or other political issues. Yet,
`pro and con groups may wish to register their names
`and slogans, which ipso facto will be offensive to those
`with contrary views. How does the PTO decide whose
`side to take?
`
`To date, the PTO has not done a consistent job
`
`of refusing trademarks that are allegedly offensive.
`Even if the government could by some miracle start
`being consistent, and even if acceptable terms never
`changed, the government would still have to take sides
`in contentious disputes about what is acceptable polit-
`ically or socially. If Section 2(a) is constitutional, the
`government will have to decide who is “right” in reli-
`gious, social or political disputes. That is not what the
`government should be doing. The government should
`process applications and let the free marketplace of
`ideas decide which brands will succeed or fail.
`
`
`
`D. The First Amendment Protects The Un-
`popular
`Section 2(a) allows a part of society to import their
`
`opinions on others. This is the tyranny of the majority,
`or in the case of disparagement, the tyranny of a
`portion of a minority group. “If there is a bedrock prin-
`ciple underlying the First Amendment, it is that the
`government may not prohibit the expression of an idea
`simply because society finds the idea itself offensive
`or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414
`(1989). A free marketplace of goods and services and a
`
`
`
`

`
`15
`
`free marketplace of ideas are intertwined. The govern-
`ment should not put the brakes on those whose ideas
`differ or are unpopular.
`
`---------------------------------  ---------------------------------
`
`CONCLUSION
`This Court should affirm the judgment of the en
`
`banc decision of the Federal Circuit.
`
`Respectfully submitted,
`JOHN R. SOMMER
` Counsel of Record
`DEVON A. BECKWITH
`17426 Daimler Street
`Irvine, California 92614
`(949) 752-5344
`sommerjohnr@gmail.com

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