Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, five amicus briefs were filed in Vidal v. Elster, a trademark case addressing the Free Speech Clause of the First Amendment. With respect to petition cases, a brief in opposition was filed in an employment case and the government waived its right to respond in a pro se case. Here are the details.

Granted Cases

Five amicus briefs were filed in Vidal v. Elster. In this case, the Supreme Court is reviewing whether the U.S. Patent and Trademark Office’s “refusal to register a mark under Section 1052(c) [of the Lanham Act] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.”

Three of the briefs were filed in support of neither party:

  • The Motion Picture Association, Inc. filed its amicus brief in support of neither party. The brief clarifies that it was submitted “because the Court may address . . . an issue of great importance to the [Motion Picture Association’s] members: the relationship between the First Amendment and the right-of-publicity tort.” It maintains that, “[r]egardless of how this case comes out, the Court should make clear that the right of publicity cannot be used to silence or deter the creation of expressive works.”
  • The American Intellectual Property Law Association filed its amicus brief in support of neither party. Its brief argues the “Federal Circuit correctly held that the U.S. Patent and Trademark Office . . . violated the First Amendment in applying Section 2(c) of the Lanham Act, 15 U.S.C. 1052(c), to refuse registration of the trademark ‘Trump Too Small.'” It explains that, while it “does not take a position on the ultimate registrability of Elster’s mark, it respectfully submits that, if a mark is found to comment on a government official or public figure, applying Section 1052(c) as a basis for denying of registration violates the First Amendment.”
  • Matthew A. Handal filed an amicus brief in support of neither party. The brief contends the “Court should remand to the Federal Circuit with instructions to affirm the refusal to register the trademark in question under the Lanham Act, Section 2(a)’s False Association Clause, 15 U.S.C. §1052(a).” It also asserts that “Section 2(c), as applied to marks that comment on political figures, is viewpoint discrimination.”

Two briefs support the government, the petitioner in this case:

  • Public Citizen filed an amicus brief in support of the government. Its brief comments how, “where a trademark claim implicates core political speech, the terms on which liability for trademark infringement is premised—that an infringing use is merely ‘likely’ to cause ‘confusion’ about source or affiliation—are not easily squared with the First Amendment’s heightened protection of political speech.” It argues “the First Amendment does not permit, let alone require, the registration of the proposed mark at issue in this case.”
  • The International Trademark Association filed its amicus brief in support of the government. Its brief asserts “Section 2(c) does not create any significant or undue restriction on speech” and that, “unlike the provisions struck down in” prior case law, it “is a viewpoint-neutral element of the registration program established by Congress.” The brief also contends “Congress has a substantial basis to regulate registration of trademarks that appropriate and trade upon the names and associated publicity rights of recognized individuals” and that, “like other viewpoint neutral restrictions on trademark registrations, Section 2(c) refusals permit more speech, not less.”

Petition Cases

Brief in Opposition

The government filed its brief in opposition in Adams v. United States, an employment case.

In this case, the petitioners presented the following question for review:

  • “Under the regulation requiring hazardous duty pay for federal employees who work ‘with or in close proximity to’ virulent biologicals, are federal employees who work in close proximity to individuals infected with virulent biologicals entitled to hazardous duty pay when such exposure is not usually involved in carrying out the performance of their regularly assigned duties?”

Now, in its brief in opposition, the government argues the Federal Circuit’s interpretation of the Hazardous Duty Pay Statute “is consistent with the text, structure, and history of the relevant regulatory provisions.” It also maintains “this case would be a poor vehicle for considering the issues petitioners seek to raise because they previously failed to raise or expressly disavowed several of the arguments they now seek to assert.”

Waiver of Right to Respond

The government waived its right to respond in Becirovic v. Vidal, a pro se case.