MMC4200 Quiz 4

Fanciful

-- these are the strongest types of marks. They consist of made-up or invented word. · Lexus is a made-up word for a car company. · Exxon is a made-up word for a gasoline or oil company. · Xerox is a fanciful name for a company known for copying machines. · Most drug companies make up words for their products. Viagra, for example, is a made-up word. § If you are in the advertising business, you might not want to use one of these because they don't signify anything about your product—they are just made up words. § Lawyers might say to make up words. The ad. Executives will say that, yes, these words are fine, but they do not suggest anything about the product.

Spectrum of Distinctiveness Categories for Trademarks

Fanciful, Arbitrary, Suggestive, Descriptive, Generic

The types of things that can serve as a trademark

Marks can also be: § colors that are distinctively associated with a brand (Tiffany blue) § sounds distinctively associated with a company (NBC chimes or Netflix) § the distinctive design and appearance or look of a product (the appearance of the front of an iPhone), a product's packaging (Tiffany's blue boxes tied with white ribbons), a store (Apple has registered a trademark for the appearance of its retail stores), or a restaurant (Chipotle has a registered trademark for the appearance of its restaurants). o Smells § Certain type of yarn that has a smell—if you smell that yarn, you would know who made that yarn.

Trade dress and dress marks

Marks relating to such distinctive looks and appearances o Total image of a product o Shape o Size o Color combinations o Texture o Graphics o Must be non-functional—not essential to use or functioning of the product § Packaging and labeling § Product design § Store appearances o Distinctive trade dress for a bottle of perfume—Daisy Marc Jacobs § The part where you spritz out the perfume is a functional use. § The non-functional part on it is the trade dress § The daisy's on top, the shape of the bottle, etc. are the trade dress. o Vodka Bottles: § The shape of the bottle and appearance of them distinguish them from each other. o Tiffany blue color is marked, the blue color is marked, but the entire box itself in terms of the ribbon and the appearance is a great example of trade dress. § The box doesn't have any words on it, but when you see it, you know exactly what it is.

Arbitrary

This is the next strongest type of mark, second only to fanciful ones. In this category, an existing word is used as a mark for a good or service that is unrelated to the common or ordinary meaning of the existing word. · Apple is an arbitrary mark for a computer company · Camel is an arbitrary mark for a cigarette company · Pledge is an arbitrary name for a brand of furniture polish.

The court in Bono ultimately decided to go after and punish NBC for airing what we call a _________?

fleeting expletive. § "F*cking" is fleetingly aired, once and unscripted. o Prior to this case in 2004, the FCC had essentially given broadcasters a free pass if there was an isolated and unscripted instance of airing an expletive. o This happens in sports all the time when the audience screams bad words. o The FCC has essentially said it is unscripted so why should we punish the broadcaster for it? § They changed that here. o NBC had argued that Bono's use of the word "f*ck" was not sexual. o The FCC said no, the F-word has an inherently sexual meaning... it rejected the notion that the f-word can be used as an adjective/modifier to show how brilliant something is.

What does the FCC have regulation over?

free, over-the-airwaves. --Rules do NOT apply to cable channels or satellite radio either.

Indecent Content

o "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." o the standards are different from Miller, but it is not a geographic specific community, it is a broadcast medium... o what is being depicted or described? § Has to be sexual or excretory organs or activities. o If you take this definition, you can break it down into a two-step analysis... o "Patently offensive" factors: § How graphic and explicit? · Suggestion is the more graphic and more explicit, the more likely the FCC will deem it patently offensive. § Repeated and dwelled upon? · Used to be under these rules that a single instance. If you unintentionally aired a fleeting expletive once, the FCC would NOT punish the broadcast entity. · Who is actually fined? Not the person who says it, the station itself. · So if a performer on an award show slips and says ****, they wont get in trouble. · The FCC changed that... · The mere fact that it was said only one time is not a complete defense, it is one factor in determining if it is patently offensive. § Done to shock, pander, titillate? · Why was it broadcast? · Was it done to shock, pander and titillate? · How is it being used? · When we think about the Janet Jackson Super Bowl halftime show, she opens her top and exposes her boobs. o That was done to shock, pander and titillate the audience—to attract ratings. · Ex: suppose during the political campaign today, Trump or Biden didn't realize a journalist had a microphone there and they thought they weren't recorded. o What if one of the candidates swore during it. o Could you air that or would it be indecent? o Broadcasters during a newscast would be free to air that—it has newsworthy value, it is not meant to shock, pander or titillate. § Holistic analysis—not one of these factors is necessarily controlling the other...

Profane Language

o "language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." § The FCC used to enforce a different and limited definition of profane language... § It was limited to religious blasphemy and divine imprecation. · Taking the lords name in vein. o Starting in 2004 after the Bono case, the FCC decided to widen its definition extensively to what it is now.

Three factors the FCC often considers to determine patent offensiveness

o 1. The explicitness or graphic nature of the description. o 2. Whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities. o 3. Whether the material is used to shock, titillate or pander.

A trademark should be used when speaking as...?

o A proper adjective—not as a noun or a verb. o "A Kleenex tissue" o "A Xerox copy" o "A Band-Aid brand adhesive bandage." o If you use a trademarked term as a verb or a noun, it will lose the ability to be marked... o A trademark name is supposed to modify a word.

What is a trademark?

o A trademark is any word, name, symbol or device or any combination thereof that is used by a company or an individual to distinguish its goods and services from those produced by other companies. o We thus commonly think of marks as brand names (Nike and McDonald's), brand logos, and brand slogans.

Acquired distinctiveness and surnames

o Acquired distinctiveness also is necessary for a surname, such as Hilton or Hyatt, to be trademarked. o The last name of the late hotel mogul Conrad Hilton has acquired a distinctive meaning among hotel customers such that they associate Hilton with a particular brand of hotel.

Sam Rockwell Incident

o Actor Sam Rockwell blurted out the words "you can't be this f*cking stupid" during a sketch when he hosted the NBC show SNL in January 2018. o In the sketch, Rockwell played a science teacher in the lab with a pair of students. One of the students was struggling to understand the task at hand, and Rockwell, apparently accidentally, included "f*cking" in his reprimand of the student

The FCC's two-step/two-determination analysis in finding something indecent:

o Before finding a broadcast indecent, the FCC must make two determinations: o First, the material must fall within the subject matter scope of indecency; that is, it must depict or describe sexual or excretory organs or activities. o Second, it must be patently offensive as measured by contemporary community standards for the broadcast medium. o The standards are not local and do not encompass any particular geographic area. o The standard is that of an average broadcast viewer or listener.

The maximum dollar amount of a fine that the FCC can hand out today:

o Congress showed its resolve in 2006 to punish indecent broadcasts when it increased tenfold the maximum fine the FCC can mete out against a station for a single instance of indecent or profane content, raising the amount from $32,500 to a whopping $325,000. o The dramatic increase may make broadcasters think twice before airing potentially indecent content. o Many broadcasters responded in 2004 after the Janet Jackson incident to the political pressures placed by Congress and the FCC by engaging in self-censorship.

Incident with Howard Stern show

o He is a radio shock jock. o Used to air on free radio broadcast airwaves—when he did that and he would swear, that rendered the company that marketed his show and all the stations that aired his show subject to liability for airing indecent content. o This is why Howard Stern isn't on free broadcast airwaves—he is on Sirius XM and satellite radio... not subject to the FCC's rules. o Now he can say anything he wants. The reason he doesn't go too far is because he wants to attract more listeners. o There is a case in 2018 with Howard Stern § A clip from his show air on GMA which is a part of ABC. § GMA airs outside of the safe-harbor zone. § In the clip that ABC airs of Sterns show, the clip is about Harvey Weinstein. § Harvey Weinstein was convicted of sexual assault on many women. § On this episode of the Howard Stern show, he is interviewing Gwyneth Paltrow who was going out with Brad Pitt. § During this time on the show, Paltrow describes an incident where Weinstein was getting handsy with her § She tells Brad Pitt this, and Stern says that Brad is going to f*ck him up. § Whoever put together the package for ABC let that air. § That is not good... o The Parents Television Commission (PTC) files a complaint with it—a trade association § About family friendly TV o It basically will file complaints anytime something airs over the free over-the-air airwaves that they say is profane, indecent or obscene. o Context means everything... § After the Boston Marathon Bombing... first time Red Sox took the field and the baseball player Ortiz swore live during the broadcast. § He said this is our city, no one is going to f*cking take it away from us. § The FCC said they wouldn't go after it. It was a part of an emotional speech after the bombing and it was unscripted. · Big picture: these rules are hugely subjective... they can be unfair and discriminatory. · A lot of the fines that have occurred recently have been against Spanish language stations and morning shows. o Even though it is in Spanish, it is translated and the words are deemed to be indecent.

You cannot trademark something if the color does what...?

o If the color serves a functional or utilitarian purpose, beyond simply identifying who made the good, you cannot trademark it. § Ex: there was an outboard motor company that always used black as its outboard motor... · When you put a black outboard motor into the water, due to the color black, it appears to be smaller under water. · That has a functional purpose—it would help sell outboard motors because once the black appeared in the water it was smaller. § Ex: If you have an upset stomach, you might take Pepto Bismol. · It is pink—there is a question, can you register pink as the color for Pepto? · The USPTO has said no—pink in that sense is a soothing color.

Disparaging trademarks-- Matal v. Tam

o In 2011, Simon Tam tried to register "The Slants" as a trademark for his rock band. o According to Tam, by choosing THE SLANTS as its name, the band was following the tradition of reappropriation, whereby members of minority groups reclaim slurs and epithets and turn insults into badges of pride. --Simon Tam and the band said they wanted to take back the term and register it for their all Asian-American band. o The USPTO denied the Slants registration, however, under a section of trademark law that denied registration to "disparaging" marks. § Tam was challenging the disparagement clause for being unconstitutional. o Tam brought the suit into federal court. o The case garnered widespread attention because it was sure to have repercussions for other owners of controversial trademarks—most notably, the Washington Redskins, the NFL football team that was stripped of its trademark rights. o Section 2(a) of the Lanham Act barred registration of a mark that "consists of or comprises immoral, deceptive or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute." o In defending the decision to not grant trademark protection to the Slants, the government argued denying trademark protection isn't equivalent to denying someone the right to speak. o The government was not stopping Tam from calling his band "The Slants." The government was simply refusing to register it as a trademark, which would give Tam the right to stop others from using the term "The Slants" for commercial purposes. o In 2017, in Matal v. Tam, the U.S. S.C. held that section 1052(a) was a viewpoint based restriction on freedom of expression. o The court unanimously held that the government could not deny registration for marks that disparage person, institutions, beliefs or symbols, while allowing registration for positive or benign words.

Scandalous Trademarks-- Iancu v. Brunetti

o In 2019, the S.C. also struck down the portion of the act that applied to immoral or scandalous matter in Iancu v. Brunetti. § In that case, Erik Brunetti, owner of the skaterwear clothing brand "FUCT," filed an intent to use the mark FUCT for various items of apparel. § The attorney, examining the mark determined that "fuct" is the past tense of the verb "f*ck" and refused to register it. § As it had found in Matal v. Tam, the Court ruled that prohibition or "immoral" or "scandalous" trademarks was a viewpoint based regulation that violated Brunetto's First Amendment rights. · The word "fuct" is not disparaging to a group of individuals, Asians or native Americans whatever it might be. · But this provision gave the USPTO to deny registration for marks that are immoral or scandalous. · The U.S. S.C. did, and they were united on it, they determined that the word immoral was viewpoint-based. In other words, you could say things that are moral about a topic or subject matter, but not immoral. · Just like you could say positive things but not disparaging things. · The government takes a stance on immorality that the word "fuct" is somehow immoral, but you can say other terms that might not be. · The term immoral allowed the USPTO to take viewpoint-based discrimination because the government gets to choose what is moral and what is immoral in its judgment and that is problematic. · They also struck down the term scandalous, not unanimously. · A majority said that scandalous also permitted for viewpoint-based discrimination.

Roanoke, Va., TV station WDBJ

o In March of 2015, the FCC announced that it was going to fine a Roanoke, Va., TV station $325,000 for broadcasting "graphic and sexually explicit material" during an evening newscast. o It marked the highest fine the FCC had ever issued for a single indecent broadcast on one station. o What did the station do that could warrant such a fine? § On a 6 p.m. newscast in July 2012, the station, WDBJ, aired a story about a former porn actress—Tracy Rolan, whose screen name was Harmony Rose—who was now working for a local rescue squad as a volunteer emergency medical technician. § Rolan's new job was newsworthy, as some Roanoke County Officials had questioned her appropriateness to serve in the tole. § At one point, the story featured a screen grab, taken from the Web site of a distributor of Rolan's adult films, that showed Rolan in a suggestive but nonexplicit way. § During that part of the story. However, a graphic sexual image—' a video image of a hand stroking an erect penis," as the FCC described it—from the adult Web site was inadvertently also visible on the screen grab for about three seconds. § That offending image was located on the far edge of the Web page from which it was taken. -- This airs outside of the safe-harbor zone § The station told the FCC the image was not visible on the monitor screens that the station used when the story was edited, which is why the news director and reporter did not see it. o WDBJ at this time had not yet converted its studio technology to digital. Those who put together the package maintained that on their editing equipment they could not see this image because it was so small and appeared on the outside of the screen. o If you were at home and had a hi-def TV, you could see it. o The image airs for a very brief and fleeting time—less than 3 seconds on the edge of the screen for a news story. § The image occupied only about 1.7 percent of the entire TV viewing area. § "The picture in question was small and outside the viewing area of the video editing screen. It was visible only on some televisions and for less than three seconds," said Jeff Marks, the station's president and general manager. § He said the inclusion of the image was "purely unintentional." § The station quickly deleted the story from its Web site and did not air the story on any other newscasts. § Nevertheless, the FCC determined that the station had violated federal law by airing indecent material. § The FCC concluded that the three-second duration of the image was "sufficient to attract and hold viewers' attention" and that "the stroking of an erect penis on a broadcast program is shocking." The chief of the FCC's Enforcement Bureau said, "our action here sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching." § The Roanoke station initially vowed to fight the fine, but in early 2016 the station was sold to Gray Television, an Atlanta-based media company. As part of the sale, the fine was paid off.

Why are trademarks important?

o It is all a matter of efficiency: § It is a short-cut for consumers to know the source or origin of goods or services · Nike Swoosh · Three stripes on a pair of shoes—Adidas · The Polo Pony—Ralph Lauren § a manufacturer can capitalize on its products' quality · when we see that Ralph Lauren pony, we know it will be good quality. § help in advertising and marketing

Why register a mark?

o Legal presumption mark is yours (that you own it) o Nationwide right o Puts public on notice you own it (Can use the R in a circle symbol) o Others can find it, others avoiding selecting similar marks. § If you go to the USPTO website, under trademark there is a search engine called test... you can type in a person's name and find if it is trademarked.

Must a mark be registered for you to use it?

o No, but "use-based" or common law rights are limited to particular geographic areas.

What are the three different instances being dealt with in the Fox Television Stations case?

o One involved Cher during the billboard music awards. o Cher had won a lifetime achievement award. § She swears and says "critics have been saying I'm old for years, but look at me I'm still standing here so **** 'em." § It is a fleeting expletive § The FCC decides to punish the station that airs them—Fox TV stations. o The second example is an ABC show called NYPD Blue—scripted TV show. § There was a brief, fleeting glimpse of the actress Charlotte Ross of her bare butt. § The textbook says a brief, fleeting glimpse of the side of her boob. § Broadcasters say isolated and fleeting—but it is scripted? We should be able to get away with it. § The FCC says no, we will punish you. § Important to note when did these air... 2002 and 2003. o Final example is with Paris Hilton and Nicole Richie. § Famous for just being famous § Take two wealthy girls from L.A., bring them to Arkansas, and plop them in this situation. § These two girls at the Billboard music awards present an award. They are told not to swear. § Nicole Richie decides to swear—they were given a script. · She says, "I'm not sure why they call it simple life, have you ever tried to scrape shit out a Prada purse... it is not so ****ing simple."

George Carlin (FCC v. Pacifica Foundation)

o Pacifica Foundation owns the radio station in question o George Carlan has a monologue to show how squeamish we are in regard to language and he does it in comedy clubs. o Remember the FCC does not actively review the broadcast airwaves. o In NYC, a man is driving in the car with his son. § The son is 14 years old. § Back in the day, on your radio dial in your car, you actually had a knob that you turned to go through the stations. § You were scrolling through the stations and all of a sudden he is bombarded by George Carlin saying seven words over and over. § He says this is terrible, he will file a complaint because his young son should not hear this language. § The FCC decides to punish the Pacifica Foundation for airing this content. · They punished indecent language. § Pacifica Foundation challenges it and takes it up to S.C. o The S.C. ruled in 1978 that it was not a violation of the First Amendment to bar indecency during certain times of the day from the airwaves. o The high court upheld an FCC ruling that radio station WBAI in New York City had violated the law when it broadcast during the afternoon a recorded monologue by comedian George Carlin. o The monologue, called "Seven Dirty Words," was broadcast on the listener-supported station during a long discussion on the English language. § He would use seven words over and over again to try and take the sting out of them. § Carlan's whole point is that these are just words—why are we so squeamish about them. § Ultimately, you probably can say those seven words... context is key. It is how the words are being said, time periods, and how they are said. o The FCC said it was impermissible to broadcast "language that describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times when there is a reasonable risk children may be in the audience." o The agency said it was unlikely children would be listening or watching after 10 p.m. and before 6 a.m., and it later designated that 8 hour block of time a safe harbor for the broadcast of adult material. o Although Carlin died in 2008, his legacy with the FCC lives on today, haunting broadcasters that air indecent content.

Making a mountain out of a "sh*thole" at the FCC

o President Donald Trump reportedly referred to Haiti, El Salvador and African nations as the "Shithole countries" during a January 2018 meeting with lawmakers about immigration. o The Washington Post first reported that Trump used the word (in a tweet, the president later denied that he said it,) and news media around the world quickly followed up on the story. o Some news organizations referred to Trump uttering "A profanity" or shortened "Shithole" to "s-hole." But other news organizations, including NBC, NPR, and CNN, made the decision to use the word "Shithole" in their coverage. That upset some viewers. o Buzzfeed filed a Freedom of Information Act (FOIA) request and discovered that nearly 200 complaints were filed with the FCC, with people frustrated that news organizations repeated the word. "Now my nephew is running around calling everything a shithole." o NBC must be fined for this; there's no excuse to use these words on broadcast television." Complained a viewer from Fenton, Mich. o Much of the frustration was directed at CNN. o CNN did not break any rules—the FCC's jurisdiction over indecency and profanity does not cover cable and satellite programming. o The FCC does not have the power to regulate indecent and profane content on over-the-air broadcast TV and radio stations, such as NBC and NPR, but, even then, context matters, and certain words are not automatically indecent. o NPR's public editor justified her organization's use of the word this way: "the president said it, according to sources who heard him, and the word is fundamental to understanding the story, and arguably his beliefs on immigration policy." o In other word, in this context, "Shithole" wasp political speech, reportedly uttered by the president and arguably showing how he feels. o As of July 2019, the FCC had not taken enforcement action on any of the complaints it received in response to the coverage.

The concept of secondary meaning and acquired distinctiveness

o Purchasers, over time, associate the mark with a single source of origin for a single product o Five years of continuous and exclusive use, then register it o Use survey evidence to demonstrate. o Unlike fanciful, arbitrary and suggestive marks, descriptive marks can only be registered with the USPTO office after an extended period of continuous use (typically 5 years or more) in which they acquire a "secondary meaning" or acquired distinctiveness. o Such that they become associated exclusively with a particular company among members of the public that consume the product or use the service in question. o In other words, consumers must come to directly associate the mark "Clean Shower" with Arm & Hammer as the source of those goods. o The name "Holiday Inn" is an example of a descriptive mark that has, indeed, acquired distinctiveness and a secondary meaning over time in the eyes of hotel users such that the name is associated with a specific brand of hotel.

FCC issue with Sam Rockwell incident

o Should the FCC be able to fine NBC for airing this fleeting, isolated and unscripted expletive? o In this case, the FCC did not because the show aired during what is known as the safe-harbor time period, when indecent and profane material is protected from FCC regulation. o But if the show had aired earlier in the evening, the FCC might have penalized NBC. This section addresses the FCC's power to regulate indecent and profane content on over-the-air broadcast television and radio during certain times of the day.

Spectrum of Distinctiveness for trademarks

o Some marks are stronger than others. The strength of a trademark is based on its distinctiveness. The more distinctive a mark is, the easier it is to register with the U.S. Patent and Trademark office and the stronger it will stand up as protectable in a lawsuit for trademark infringement. Some marks are inherently stronger than others. o When it comes to a mark's distinctiveness, attorneys refer to a "spectrum of distinctiveness."

FCC changing its definition of profane language in the Bono case

o The FCC changed its definition of profane language here. o Ex: § Panic at the Disco song: air out on the radio "haven't you people ever heard of closing the ******** door..." § Religious blasphemy or divine imprecation. § Using the lords name in vein, o Up until the Bono case, the FCC had limited it to this. o Now with Bono, the FCC wants to expand it to this new broad definition. o The FCC now says we will go after isolated instances. § They said they will still consider how often it is dwelled upon, but the mere fact that it was only used once or twice will not be a defense. § The use of the f-word is inherently sexual... does it depict or describe sexual or excretory organs? § They changed the definition of profane language from their very narrow one before.

How the FCC previously defined profane language and how they define it today:

o The FCC narrowly limited the statutory meaning of the term "profane language" to "blasphemy or divine imprecation." It completely reversed course, however, in March 2004 and concluded that Bono's speech was profane... o The FCC in 2014 defined profane language as language that is "So grossly offensive to members of the public who actually hear it as to amount to a nuisance."

The Bono/NBC Case

o The FCC ruled that the use of the phrase "this is really, really f*cking brilliant" by Bono, lead singer for the Irish rock group U2, during an acceptance speech at the 2003 Golden Globe Awards television program and broadcast by NBC outside the FCC's safe-harbor time period, constituted "material in violation of the applicable indecency and profanity prohibitions." o The decision stunned many legal observers. Why? Because Bono's use of the word "f*cking" was both isolated and fleeting—it was not repeated or dwelled upon, a factor that traditionally is important for the FCC in determining whether or not speech is patently offensive—and because it was not used in a sexual sense, but rather as a modifier for emphasis on how "brilliant" it was that U2 had won for Best Original Song. o Furthermore, officials at NBC had no advance knowledge that Bono was going to use the expletive in question, and the network was able to "bleep" the language for its West Coast airing of the program. o Despite these facts, the FCC concluded that Bono's language, as used in context, was both indecent and profane. As to why the program was indecent, the FCC began its analysis by re-articulating its two-step process for indecency determinations, writing that "indecency findings involve at least two fundamental determinations. First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition; that is, the material must describe or depict sexual or excretory organs or activities... second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium." o With respect to the first step, the FCC found that "given the core meaning of the "F-word," any use of that word or variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition. o Turning to the second step of its indecency analysis—whether the broadcast of Bono's speech was patently offensive under contemporary community standards for the television medium—the FCC wrote: § "The F-word is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language. Its use invariably invokes a coarse sexual image..." o The FCC thus concluded that the Golden Globes broadcast was indecent. o Importantly, the commission suggested that NBC could have prevented the entire problem, writing that the network "and other licensees could have easily avoided the indecency violation here by delaying the broadcast for a period of time sufficient for them to effectively bleep the offending word." o The FCC then added a new element to its indecency calculus, holding that the "Ease with which broadcasters today can block even fleeting words in a live broadcast is an element in our decision to act upon a single and gratuitous use of a vulgar expletive." o In addition, the commission wrote that "the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent." o The commission held that it made no difference whatsoever that NBC did not intend for the offensive language to occur. o The FCC held the broadcast to be profane.

FCC applying the two-step analysis for the Super Bowl Halftime show

o The FCC vigorously applied its indecency standard when it released a Notice of Apparent Liability for a whopping aggregate sum of $550,000 against various television licensees concerning their February 1, 2004, broadcast of the Super Bowl Halftime show. o The amount was, at the time, the largest indecency fine ever levied against a television broadcaster, namely CBS affiliates. o The FCC focused its inquiry on Janet Jackson and Justin Timberlake's performance of the song "Rock your Body." o The raunchy duet infamously concluded with Timberlake's removal of a portion of Jackson's leather bustier, briefly exposed her breast to the camera, at the precise moment when Timberlake finished the song's lecherous last lyric "gonna have you naked by the end of this song." o The FCC applied its two-step indecency analysis to this performance, considering first whether the broadcast described or depicted sexual or excretory organs or activities, and then, second, whether it was patently offensive as measured by contemporary community standards for the broadcast medium. o The first step was easily satisfied, as the FCC wrote that the broadcast culminated in on-camera partial nudity with Jackson's exposed breast, thus constituting a depiction of a sexual organ.

The Super Bowl Halftime Show

o The FCC vigorously applied its indecency standard when it released a Notice of Apparent Liability for a whopping aggregate sum of $550,000 against various television licensees concerning their February 1, 2004, broadcast of the Super Bowl Halftime show. o The amount was, at the time, the largest indecency fine ever levied against a television broadcaster, namely CBS affiliates. o The FCC focused its inquiry on Janet Jackson and Justin Timberlake's performance of the song "Rock your Body." o The raunchy duet infamously concluded with Timberlake's removal of a portion of Jackson's leather bustier, briefly exposed her breast to the camera, at the precise moment when Timberlake finished the song's lecherous last lyric "gonna have you naked by the end of this song." o The FCC concluded that the broadcast of the Super bowl show was indeed patently offensive. o It initially found that the videotape of the performance "leaves no doubt that the Jackson/Timberlake segment is both explicit and graphic. The joint performance by Ms. Jackson and Mr. Timberlake culminated in Mr. Timberlake pulling off part of Ms. Jackson's bustier and exposing her bare breast. CBS admits that the CBS network stations broadcast this material, including the image of Ms. Jackson's bared breast." o The FCC then reasoned that the nudity here was designed to pander to, titillate and shock the viewing audience. o The fact that the exposure of Ms. Jackson's breast was brief is thus not dispositive. o It was a fleeting glimpse of a non sexual organ, according to CBS o CBS said the breast is not a sexual organ, but the FCC said it was sexual... § Even though it was fleeting, the FCC said we changed our rules so fleeting doesn't matter. o S.C. passed on the Jackson case in hearing it later one.

How a trademark can be lost

o The Ford motor Company in 2003 wanted to name one of its automobiles "Futura," a name it had used from 1959 to 1962 and in the late 1970s and early 1980s. o But when it stopped using the name, Pep Boys, an auto parts retail chain, registered the name as a trademark. o When the automakers tried to use "Futura" again, Pep Boys went to court to block Ford, and a federal court ruled in 2004 that the company had abandoned the trademark when it stopped using the name some 20 years earlier. o Failure to use a name for as little as three years can constitute abandonment. o It is also possible that trademark protection can be lost if the owner of the mark allows others to use the mark in a generic way. o For example, if the makers of Super Glue (a trade name) adhesive failed to try to stop other adhesive makers from referring to their products as super glues, the trademark protection could be lost. o These generic words—nylon, dry ice, escalator, toasted corn flakes, raisin bran, aspirin, lanolin, mimeograph, cellophane, linoleum, shredded wheat, zipper, yo-yo and brassiere—were all at one time registered trademarks that slipped away from owners who failed to protect these names.

FCC v. Fox Television Stations

o The S.C. in 2012 combined three different instances that were allegedly indecent. § Important to note when did these air... 2002 and 2003. § It is a fleeting expletive § The FCC decides to punish the station that airs them—Fox TV stations. o In June 2012, the S.C. in FCC v. Fox Television Stations dealt the FCC a relatively minor blow when the Court threw out fines the FCC had imposed on both Fox and ABC for airing allegedly indecent content during 2002 and 2003. o The Fox controversies involved two incidents of so-called fleeting expletives—celebrities briefly swearing during unscripted remarks at the Billboard Music Awards. o The timing proved pivotal for the S.C. in Fox Television Stations, as Justice Anthony Kennedy concluded that neither Fox nor ABC had "fair notice" of the new FCC's policy because the Fox and the ABC broadcasts took place prior to the new adoption. o The decision thus was very narrow—the Court only tossed out the fines because the FCC failed to give Fox and ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found indecent. o The 2012 Fox Television Stations ruling thus is equally as important for what the Court did not do and what it did not decide. o Specifically, the Court did not 1) Address the first amendment implications of the FCC's current indecency policy, including its 2004 decision to suddenly target fleeting expletives, and 2) overrule its 1978 precedent in FCC v. Pacifica Foundation that upheld the FCC's power to regulate broadcast indecency during times of the day when children are likely to be in the audience. o The bottom line is this: the S.C. in 2012 dodged a great opportunity in Fox Television Stations to revisit both the First Amendment issues surrounding the FCC's regulation of broadcast indecency and the Court's seminal ruling in Pacifica Foundation. o The case thus represents an instance of judicial minimalism—a characteristic of the court under the leadership of Chief Justice John Roberts in which its rulings are very narrowly drawn to address only the smallest possible issues necessary to deal with a case. o In a lone concurring opinion, Justice RBG suggested that she would overrule Pacifica Foundation if given the chance.

How does the FCC define indecency?

o The commission's definition of indecency remains the standard: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.

In FCC v. Pacifica Foundation, what rationale did the court apply?

o The court applied a nuisance rationale. § During some times of the day, broadcast indecency is OK. § Consenting adults should have the right to hear it. § Other times it is wrong if children can hear it. § Carlin's monologue is like a nuisance. It is the right thing, but in the middle of the day it is the wrong time for it. § The court suggested that Carlin's monologue was like a pig in the parlor. § Carlin is pig, middle of the afternoon broadcasting wandered into the parlor he shouldn't be there. § Right thing, wrong location or time. o The court in 1978 affirms the FCC's ability to regulate broadcast indecency during certain times of the day when children will most likely be in the audience.

The functions of marks:

o The key functions of all marks (trade, service or dress) are to clearly identify the source or origin of a product and service with a specific company and, in doing so, to prevent consumer confusion about whose goods and services one is buying. o In other word, when you see Nike's swoosh logo—one of the most well-recognized marks today—on a pair of running shorts, you know you are buying a genuine Nike product without even needing to see the word Nike on the shorts.

Some of the justices in Iancu v. Brunetti said they were concerned and upset about striking down the immoral and scandalous clause and what this might mean...

o They were worried the N-word might be registered. o If we strike down the immoral and scandalous clause, then people, racists, are going to start to register it and we would have no power to stop them. · What the dissent on this said was that scandalous is more on how something is said, they are modes of expression. · They basically were suggesting—think Cohen v. California—it was really all about a mode of expression (emotive v. cognitive) o The cognitive—I object to the draft o The emotive—**** the draft. · They said that I could say certain things about groups of people, but using certain language, such as the n-word, might be a scandalous mode of expression. · 9 justices struck down immoral and 5/9 struck down scandalous. · So now we know both the disparagement clause and now this clause struck down. · This has left the USPTO with very little authority to kind of police the realm. § He claimed the mark. § After this case, they can register this. · His clothing is described as skater clothing.

Federal Statute 15 U.S.S 1127

o This is a federal statute that defines what a trademark is o The term "trademark" includes any word, name, symbol, or device, or any combination thereof [used] to identify and distinguish his or her goods, including a unique product, from those manufactures or sold by others and to indicate the source of the goods."

The information that must be provided by a person when filing a complaint with the FCC?

o Three things are required by the FCC before it will investigate a viewer's or listener's complaint. § 1. The date and time of the broadcast in question --- Broadcast indecency and broadcast profane language do get some sort of protections during certain times of the day—not obscenity, though. § 2. The call sign and letters of the station that aired the content --- You can't just say the stations nickname—it has to be more specific. § 3. Details of what was actually said or depicted during the broadcast. --- Need details and context. § It helps to have a substantial excerpt of what was said or recorded. § Context is key. § If you aired a broadcast tonight where Trump was caught on a mic saying the F-word, you would be protected because it is used in a newsworthy context to show an unscripted moment of how the President felt... § You need details on how it was used. o The first requirement is important because, if the broadcast occurred during the safe-harbor period of 10 p.m. to 6 a.m., then any complaint for indecent content or profane language will be dismissed. o Remember, that eight-hour window is when indecent and profane content is protected from the FCC's wrath. o The second requirement is important because the FCC must know the particular station—the particular broadcast licensee—that carried the content. That station will, in turn, be named and investigated by the FCC. o Finally, the third requirement—that details of what was actually said or depicted during the broadcast be provided to the FCC by the complainant—can be satisfied in several different ways. § For instance, the complaining viewer may provide a full or partial recording or transcript of not only what was said byt the context in which it was said. § It is not enough for the complainant simply to state that "there was a broadcast involving sexual dialogue."

In the Roanoke case, why did WDBJ believe they should get an exemption?

o WDBJ argued a few things: § This was a part of a newscast—you should give us an exemption. · The FCC said no. · There is no persay blanket exemption from the broadcast indecency rules simply because content airs on a newscast. § The broadcasters also said you would only go after the most egregious episodes—this was not egregious... we couldn't see it when editing. · WDBJ said it is an isolated fleeting image · But it wasn't even meant to shock, pander and titillate—it was part of a legitimate news story o FCC rejects it.

Aftermath of the Fox Television Stations case

o What has the FCC done about broadcast indecency since the 2012 ruling by the Supreme Court described earlier in FCC v. Fox Television stations? o Other than a $325,000 fine against a Roanoke, Va. TV Station in 2015, it has been a fairly dormant period of indecency regulation under the FCC. o In an April 2013 "public notice," the FCC sought comment on whether it should make changes to its current broadcast indecency policies or maintain them as they are." o The notice specifically asked the public to consider if the FCC should stand by its decision in the Bono case to target broadcasters for airing isolated and fleeting expletives. o While seeking such input, the FCC added it would still actively investigate only what it called "egregious indecency" cases. o The FCC did not, however, explain what it meant by the vague phrase egregious indecency. o As of early 2019, about six years after the FCC issued that "public notice," the FCC had failed to release any kind of response to the public comments it solicited, failed to propose a new indecency policy and failed to clarify what it meant by "egregious." o The FCC's silence frustrates broadcasters, who say they need better guidance. o The number of complaints to the FCC about indecency has actually dropped dramatically in recent years, from 1.4 million in the year of the infamous wardrobe malfunction in 2004 to around a thousand in one recent year.

The FCC's safe-harbor time period

o When the FCC began its vigorous approach to both indecency and profanity in 2004 with decisions affecting the Golden Globes, the Super Bowl and "Married by America," one thing did not change: the safe-harbor time period when such content is protected from FCC regulation. o The safe-harbor time period remains in effect from 10 p.m. to 6 a.m.—an eight-hour window during which both indecent and profane language may be broadcast. o Obscene speech, however, falls completely outside the scope of First Amendment protection and is not protected at any time of the day. o In other words, there is no safe-harbor time period for obscenity on the public airwaves. o these rules DO NOT apply to cable (ESPN, Fox News, CNN, MSNBC, Comedy Central, etc.) o The other 16 hours of the day are not protected.

Cohen v. California-- 403 U.S. 15 (1971)-- EXAMINING THE BREAKDOWN OF THE CASE NUMBER AND NAME

o When this case started at the trial court level it was a criminal case, and it was called the people of California v. Paul Robert Cohen. o The name of the first party in the case is the party that lost down below and has petitioned the supreme court to hear its case... Cohen v. California... means Cohen lost down below and it is now at the S.C. level. o The S.C. decided the case in 1971 o The U.S. means U.S. reports—actual book where you would be able to find this case if you were to look it up on West Law or Lexis. o 403 stands for the volume of the U.S. reports in which this appears. o The 15 is the first page of the case... in volume 403. o Those numbers still hold true online today § appellant)... he is the defendant in the underlying criminal case. · When the case first started out it was criminal. o He was convicted under the California Penal Code § The section in which he was prosecuted and convicted under: "offensive conduct..." § He was given 30 days imprisonment at the trial court level... § He appeals to the court of appeals of California—the court of appeal then affirms his conviction.

Can an identical word serve as a mark for two companies?

o Yes, but only if the goods and services are unrelated. § Dove Chocolate Bar products § On the other hand, we also have Dove soap products. § Nobody is going to confuse them in terms of source or origin. · When you see the Soap product, you don't confuse it with the chocolate. § Ex: Delta · Airline · Faucets · Dental Insurance · These are three different types of goods and services.

Can surnames be trademarks?

o Yes, but only if they have acquired a "Secondary meaning" among the "purchasing public." § Ex: Hilton, Hyatt o What this means is that of those people who stay at hotels, the traveling public, when they see the last name Hilton, they specifically and distinctively identify it as a particular hotel chain. Same thing with Hyatt and Marriott. o If you just wanted to trademark your name immediately, initially you would not be able to mark that—it would have to be overtime, at least 5 years, for the eyes of the public to associate that last name with a hotel chain.

Owens Corning Trademark

o makes insulation for houses: their trademark color is pink. § The color pink for insulation here serves no functional or utilitarian purpose at all. § In Pepto Bismol example, it served a functional, soothing purpose. § They get to control that color pink in association with insulation for homes and other buildings. § This doesn't mean a company that makes tractors can't paint their tractors pink, because there would be no confusion there. § You only get to control it with that one product...

Something can only be a mark if it does what...

o mark if they acquire a secondary meaning and are non-functional. § Acquire distinctiveness in the minds of the consuming public. § Those colors, sights or sounds, we, in the consuming public, distinguish them and associate them with a particular brand or company.

What happens when a mark becomes synonymous with the entire category of products?

o then it becomes generic and loses the ability to be marked, and generic things cannot be trademarked. o If Kleenex became synonymous with regular tissues, it becomes generic. o You are not supposed to say you "Googled something" § "I am going to conduct a Google Search..." o Brands are very protective over their trademarks and don't want to become generic. o Examples: § 'Kleenex is a brand name' and should always be followed by an R in the school and the word 'Tissues.' § Kleenex in the zipper shape is symbolic · Zipper used to be a trademark but it became Generic overtime. § Band-aid brand adhesive bandages o Xerox had an ad of a Zipper on a jacket: § "If a trademark is misused it could come undone." § Zipper became synonymous with an entire category of a device (sweatshirt or jacket). · It was lost because people misused the name. § They said to use Xerox only as an adjective.

There are three categories in green on the spectrum, what does this mean?

o these three types are inherently distinctive § They do not need to acquire a secondary meaning to register with the USPTO § If you are Fanciful, Arbitary, or Suggestive marks then the USPTO will consider those marks to be inherently distinctive and can be registered immediately assuming no one else with the same product is using it. o Descriptive marks MUST acquire a secondary meaning o Generic is an entire category, they cannot be trademarked

Descriptive

this is the weakest type of mark. A descriptive mark directly describes features or qualities of the product in question without a consumer having to do any additional thinking. § Conveys an immediate idea of the ingredients, qualities or characteristics of the goods § Not inherently distinctive § Only trademarkable if it acquires a secondary meaning § If it falls into descriptive, you will have to wait that 5 year period until it acquires a secondary meaning. · The company Arm & Hammer, for instance, makes a daily shower spray to prevent mildew and mold called "Clean Shower."

Suggestive

weaker than fanciful and arbitrary marks, suggestive marks suggest to consumers some attributes or qualities about the product in question, but do not clearly describe the product. · In other words, consumers must do a little bit of thinking and use their imagination to understand what the product is. · Coppertone is a suggestive mark for a suntan lotion, implying the shade of skin one achieves from it. · Microsoft is a suggestive mark for a company that makes computer software. · Chicken of the Sea is a suggestive mark for the name of a brand of canned tuna products. -Netflix: good example of suggestive, but some people might argue that it is a made-up word. -TicketMasrer

Generic

§ Common name for an entire type or category of product § Cannot be trademarked for the type of product · Duck tours · Texas Toast · Urgent Care · Lite · Latte § A generic term can be trademarked ONLY if it is used in an arbitrary way · Table (if the name of a restaurant)

Who wrote the opinion in Cohen v. California?

§ Justice Harlan wrote it—he was designated by the majority or by the chief justice to write it. § There is a dissent in Cohen v. California but we don't have to read that one.

What do symbols mean for trademarks?

§ Means it has been officially registered with the USPTO § You can only put that on your name or your slogan after it has been registered by the USPTO o TM: § You can put on your mark immediately. § It does not need to be registered. § Means you are claiming that mark. § Sometimes companies in the U.S. that actually do hold a registered trademark but do business overseas will also put on the TM because they want to claim that mark worldwide. o SM: § Means service mark. § Trademarks are for goods or products— service marks are different. § Look at Geico—that is a service mark. § Geico is an acronym for Government Employees Insurance Company. o The P in the circle: § This is for a copyright for a sound recording. § Realm of copyright law. § On the actual recorded version of something , the phono recording, this will be on it. § On the actual recording from the artist is where this will be.—do not confuse this with trademark law.

When can a generic term be trademarked?

§ ONLY if it is used in an arbitrary way · Table (if the name of a restaurant)

Why does Justice Harlan say Cohen v. California was taken at the Supreme Court level?

§ Suggesting why readers might have taken this case—at first blush it finds its way to be too inconsequential to find its way into its books. · It is one guy in LA wearing an offensive message on his jacket. § The issue it presents is of no small constitutional significance. · Dealing with dissenting political speech about a government policy. · At this time, the draft was going on for the Vietnam war. · It is a government policy... we don't have to have the draft. · He is critical of the draft and against a government policy. § It deals with not just political speech but also dissenting political speech. § That is why people think the court decides to take this case.

Washington Redskins

§ The Tam case also reflects with the Redskins. § This case shows both sides of that. § When the U.S. S.C. struck down the disparagement clause as being unconstitutional, violating the 1st amendment, by permitting the USPTO to engage in viewpoint-based discrimination, it meant that the Redskins could go back and claim Redskin, which is disparaging to native Americans. § The history of that was that the USPTO had granted the Redskins trademark over that term a long time ago. § And then Native Americans were very upset about that... § They went back and they got the USPTO to reverse that decision and to reverse that mark. § It didn't mean that the Redskins couldn't keep using it, they could. You don't have to register with the USPTO. § They could still claim it as a mark, but there rights would be less powerful. § Even though you lose it with the USPTO, you can still use it for your team—this leads to community censorship. The idea that we will self-censor because there is a lot of pressure put on us.

Christian Louboutin and Yves Saint Laurent

§ The red outer sole on the Louboutin shoes signals to you who makes them. § Christin Louboutin sued Yves Saint Laurent for that red saying it is their mark. · Because if you are to ask women who buy these expensive shoes whose shoes are the ones with the red soles, they would know it was LouBoutin. § Yves Saint Laurent said: if you are able to control that red, then you are taking something off the color palette for us to use. · They sued § Went to court—federal court said: · Louboutin has the ability to control the red for those outer red soles when that contrasts with the shoe color itself. · the judge said that there is a certain pop with that contrast. · But, if you want a single, monochromatic shoe, then Yves Saint Laurent and any other company can continue to use it.

What did the Supreme Court have the opportunity to do in the Fox Television Stations v. FCC case?

§ They have the opportunity to: · Say the FCC no longer has the ability to regulate indecency on the broadcast airwaves—reverse decision in Pacifica Foundation o A lot of time had passed o Changed circumstances today o Should no longer treat broadcasters different than cable and satellite. o Why should we be subject to broadcast indecency rules when Cable shows are not? · Also had a chance to say that your decision, FCC, to go after fleeting expletives and change your definition is wrong and unconstitutional. o The S.C. in this case ultimately punted on these issues and did not address them o The S.C. said "We will strike down the fines that the FCC has administered against Fox and ABC..." § Why? It is a matter of timing. § All three of these broadcasts aired in 2002-03. § At that time, the FCC allowed one free bite. It did not punish broadcasters for isolated expletives YET... not until 2004 with Bono case. § Fox Television and ABC did not have fair notice at the time they aired these broadcasts that they could be punished for this type of content. o The court avoids the big picture issues—should we overrule Pacifica Foundation and declare it wrong? Should we question the FCC definition of indecency? § No, all we will do is say these broadcasters did not have fair notice at the time they aired them that they could be punished for airing them. o The fines were wiped out, but the court punts the larger first amendment issues. o Similar to Elonis case... S.C. narrowly decided that case on the statutory grounds.

Genericide

§ This suggests the death of a registered trademark § Becomes synonymous with the entire category of product § Kleenex, in our mind, should designate a specific brand of tissue. But if Kleenex becomes the name that we use for tissue, generally speaking, then Kleenex is in trouble. o A lot of generic terms were once registered marks... o Ex: § Asprin—Acetylsalicylic acid § Escalator § Cellophane § Murphy bed § YoYo o The process of a once-trademarked term losing its trademark-protected status is known as "genericide." o In brief, the trademark comes to represent an entire class of goods and no longer a specific brand within that class. o And as trade names become more commonly used, there is a tendency for them to slip into a generic term. o In 2017, the 9th Circuit Court of Appeals heard a case involving the issue of genericide. § Two plaintiffs claimed Google had become a generic verb to describe the act of searching the Internet that could not be protected by Trademark law. § The 9th Circuit court, however, ruled that a claim of "genericide" must relate to a particular type of product or service, not simply the word itself. § The court held that it didn't matter if "google" had become a generic term for search engines.

How does the WDBJ Roanoke case end?

§ WDBJ appeals this matter. o While the case was going up to appeal, the owner of WDBJ say he is going to sell it to a different business. o FCC says if you want to sell that station then you have to pay off that fine. o That rendered the moot the appeal—we did not get any appellate court ruling. o This was the last major broadcast indecency case that the FCC has ruled on.

Why did the S.C. strike down, unanimously, the disparagement clause as being unconstitutional?

· Because it allowed for viewpoint-based discrimination... § in this case, you could only say positive things about Asians, but not negative things. § So if the subject matter were Asian-Americans, you can only say positive things. You can't say things that disparage them, such as the word slants. § The government has taken sides and that is inherently unconstitutional when it comes to private speech. § Matal was censoring speech of a private individual, Simon Tam, and he was doing it because he was allowing positive things to come out, not the negative things. § Easiest way to think about this is with the topic of abortion: · It would be if the government said we only allow pro-choice speech but not pro-life speech, that is viewpoint-based discrimination and it is unconstitutional. · Why? Because only one side of the debate on abortion is allowed to come out. § The court strikes down the disparagement clause as being unconstitutional. § This case was a victory for the slants to take back that word as a disparaging term to Asian-Americans, yet it also freed up the ability of the Washington Redskins to use a derogatory term for native Americans.

Does anyone own the airwaves?

· Broadcasters do not own the airwaves... the FCC grants these broadcasters licenses for the public interest. o If they fail to do so, they can be fined and lose their license and the FCC can give it to someone else.

Is Cohen v. California an obscenity case?

· He is being prosecuted for offensive conduct, but if the speech is obscene, he will lose. · The court says it is NOT an obscenity case. · F*ck the draft is not erotic and it is not obscene...

Can California censor the speech acting as guardians of public morality?

· Issue of public concern. · Putting the decision as to what views should be expressed largely into the hands of each of us—it is not up to the government to say what is right or wrong here. · Speech about politics is at the top—Mieklejohnian theory · In the U.S. unlike a number of countries we allow dissenting political speech. · The air may at times seem filled with verbal chaos, but it is a sign of strength. · He is prosecuted under offensive conduct, but how does one person define what is offensive or not? o If you challenge it, you can say on its face it is void for vagueness because what is offensive to one person might not be offensive to another. o Gives California great discretion... o The S.C. says "how is one to distinguish this from any other offensive word?" o While the particular four-letter word is more distasteful than others, it is often true that one man's vulgarity is another's lyric.

Is Cohen v. California a fighting words case?

· One-on-one, face to face, personally abusive epithets that would cause the person to fight back and swing at the speaker? o The answer to that here is obviously no. · The speech isn't directed at a personal person, it is at everyone. · It was not a direct person insult. § The court said his speech does not fall under an unprotected category of expression... it is presumptively protected.

Policy arguments in Cohen v. California

· People in the courtroom exposed to it, shocked, offended by it? o The fact that some people may be offended by it is not a reason to justify the government censoring it. o The ability of the government, consistent with the constitution, to shut off discourse solely to protect others from hearing it, there has to be some substantial privacy concerns that are harmed in the process. o That leads us to... where is Cohen? He is in a public courthouse in a public space. § When you are in a public space or venue, you have a reduced expectation of privacy. o If you are in your home you have a privacy expectation. A sound truck coming down your residence at 2 a.m. is invading your privacy interest and that speech wouldn't be protected. o Those in the LA courthouse could effectively avoid further bombardment of their sensibilities by AVOIDING THEIR EYES!!! § NO ONE FORCED ANYONE TO LOOK AT THE JACKET. § He isn't going up to anyone and forcing them to look at it. § Remedy is self help. o Another reason the court rules in favor of Cohen is that he is in a public space where the audience dos not have an expectation of privacy that is being harmed.

Publix Trademark example

· Publix has registered the word Publix, the stylization of the word Publix (san-serif font) with the USPTO o Not only can the word be trademarked but also the way it appears. o Publix has also trademarked "where shopping is a pleasure."—when you hear that, you identify that with Publix. o The color could also be a trademark for them—if they have not tried to register it, they could claim it as their own color. · You don't have to register a trademark, but if you do you get a presumption that you own it nationwide. o You can only put the R in the circle next to it after it has been officially registered by the USPTO.

Issues in Cohen v. California case

· The big-picture issue is if California is violating first amendment speech rights of Cohen to engage in political speech? · A more nuanced articulation of that: o The issue is to whether California can excise as 'offensive conduct,' one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary." § This is the argument that California has an ability as guardians of public morality that this word is offensive and wrong. § The court rejects the first argument that California can say this causes a violent reaction—we know there was no reaction from anyone other than the officer in question that arrested him. § California can't just guess, they need actual facts that the speech will cause actual harm—good example of precedent here is with Tinker case.

Conclusion in Cohen v. California

· The court says if you are going to censor dissenting political speech in a public space, then California has to find a much more compelling interest than simply protecting public morality... that is not enough. · Why do we mention the 14th Amendment here? o Because the state is doing the prosecution here... it is a state statute that they are prosecuted under, the due process clause. · Because this is a state prosecution, we need to make the first amendment applicable to the states (14th amendment) · They are digging at California by saying you're are criminalizing the single use of a four-letter bad word and that is not allowed here. · They say the judgment below must be reversed. o Cohen wins, the conviction is thrown out. o Had Cohen said that he had the message "**** the dodgers," the S.C. would never have taken this case. o It took the case because it was dissenting political speech. o That is why the court rules in Cohen's favor. o The dissent rules against Cohen but that one doesn't go into effect because it was the minority. § They bought California's argument that it was more offensive conduct than the message. o A lot of offensive speech is protected by the S.C. of the United States

What is the FCC an example of?

· a federal administrative agency. o Specializes in communications areas. o Regulates broadcasting, cable, telephony, and wants to regulate more of the internet.

Underlying facts of Cohen v. California

· courthouse. · Women and children are around but he isn't doing it in a loud manner—so that isn't relevant · The only relevant part is that it is offensive conduct. · The depth of it was in the f-word... · Not only is it dissenting political speech, but how he says it, the emotive impact, it is very important and we need to protect that. § The California Supreme Court declined to hear his case and the conviction in the trial court level was affirmed. § But he appeals to the S.C. and they take his case. § At the bottom of the first page, Harlan says "We now reverse..." § He is convicted under a statute that prohibits offensive conduct. § California said it was about conduct and not speech · Dichotomy between speech and conduct is very important. · This isn't really symbolic speech, but it is pure speech—it is the printed word on a jacket." § The majority of the S.C. says this is a first amendment speech case, however. · It says the state lacks power to punish Cohen for the underlying content of the message of the inscription conveyed. § The court asks does his speech fall into an unprotected category of speech? If so, then the first amendment challenge to this will lose. · The court goes through and asks if Cohen' speech fits within an unprotected category of expression—if it does, California wins.

Dual-communicative function of speech in Cohen v. California

· one of the functions is a cognitive function of speech o I object to the draft · The other is the emotive function of speech o Its emotional appeal—**** the draft o If he had worn something that said I object, it lacks emotive force. · How something is said can be EQUALLY as important as what was said. · We're allowing Cohen to speak in an unmoderated fashion here. · The court says that California might truly be objecting to cohen's anti-draft viewpoint, and it might want to censor that viewpoint... · But what it might be doing is latching onto the guise of a particular word and saying "We don't really care about his viewpoint, we want to protect women and children from the word." But that might be a mirage for what they truly think about their real motive.