Althouse: With oral argument by telephone and the Justices subjected to a protocol of asking their questions in order of seniority, the long-silent Justice Thomas asked 2 questions.

May 4, 2020

With oral argument by telephone and the Justices subjected to a protocol of asking their questions in order of seniority, the long-silent Justice Thomas asked 2 questions.

Thomas has been on the Court longer than any of the Justices, but the Chief Justice is regarded as first in seniority. That makes Thomas second in seniority, and therefore the second to have the opportunity to speak under this new approach.

I'm reading the report at Fox News, which notes that Thomas had, before this morning, only spoken twice at oral argument since 2006.

Thomas's questions today were about whether Booking.com could trademark "Booking.com": "Could Booking acquire an 800 number that's a vanity number, 1-800-booking for example, that is similar to 1-800-plumbing, which is a registered mark?... I'd like you to compare this to Goodyear.... In Goodyear, you had a generic term, but you also had an added term, such as company or inc, which any company could use. With Booking here there could only be one domain address dot com, so this would seem to be more analogous to the 1-800 numbers which are also individualized."

The new approach is much more polite and orderly. Obviously, the usual approach of Justices breaking in and attempting to dominate would be horrible on a telephone conference call. Maybe this experiment in order will affect how the Justices go forward with their courtroom theatrics if and when the social distancing ends.

35 comments:

Dave Begley said...: Nope. RBG will continue to dominate oral argument with her constant interrupting and badgering of the lawyers. That's who she is. And Bryer will also continue to ask his convoluted and complex hypos straight from outer space.; 5/4/20, 10:33 AM
Wince said...: Obviously, the usual approach of Justices breaking in and attempting to dominate would be horrible on a telephone conference call. Maybe this experiment in order will affect how the Justices go forward with their courtroom theatrics if and when the social distancing ends.

Pouring cold water on a "hot bench"?; 5/4/20, 10:33 AM
cubanbob said...: It's a great idea. If the purpose of the questioning is to elucidate comments from the advocates, this is the way to go. Also time limits should be lengthened. If the case is important enough for the Supreme Court to hear, the oral arguments should be let to run their course.; 5/4/20, 10:36 AM
gspencer said...: Nine sound booths, like they used on the $64,000 Question, would be ideal. And would so nicely match the paneling of the courtroom,

https://www.amazon.com/12-Inch-Pruning-Reciprocating-Sawzall-Blades/dp/B075J7LF4Z; 5/4/20, 10:44 AM
Nonapod said...: Obviously, the usual approach of Justices breaking in and attempting to dominate would be horrible on a telephone conference call

I can't emphasize enough how much I hate people being interupted in a more formal contexts. I don't much care for it in informal conversations either, but I understand why it happens. In a more formal setting, if somone is speaking and you suddenly have a thought or question that you're afraid you might forget, write it down rather than interupt.; 5/4/20, 10:47 AM
iowan2 said...: I seem to remember a trademark case concerning a gentleman whose last name was McDonald, that had been running a cafe, for 20 years, named simply McDonalds. The burger giant came after him and won. You cannot use your own name for your business. I would be eager to be corrected or context added to explain

Thomas' rare voice is hard to explain. About the only explanation he felt protected his question would not behi- jacked by another judge?; 5/4/20, 10:47 AM
iowan2 said...: SCOTUS decisions are not influenced by oral arguments...so I have been told by experts. Their only purpose is to give an illusion of transparency. Not real transparency.; 5/4/20, 10:50 AM
Leland said...: SCOTUS to adopt a Robert Rules of Order process?; 5/4/20, 11:03 AM
bagoh20 said...: The SCOTUS should be addressing issues created by Covid like everyone else has to right now. Covid issues are currently the most important threats ever to our Constitution. They really do not have time for anything else. On the other hand, it would probably lead to wiser decisions later when the hysteria has cleared and people can think beyond fight or flight, and we can look back to see if running off the cliff was the best strategy for our herd.; 5/4/20, 11:15 AM
PuertoRicoSpaceport.com said...: I need to go look at this case as it sounds interesting.

Goodyear, as one word, is certainly not a generic word. It is a proper noun, the last name of Charles Goodyear who invented vulcanized rubber. He was not involved with the company, though.

McDonalds is also a proper noun, the last name of the 2 McDonald brothers who founded the chain. Though Ray Kroc is the one who took it national.

I could start a business named McDonalds or Goodyear. I could even trademark the name. I could not start a restaurant or a rubber company of that name. I could start a McDonalds tire company or a Goodyear Cafe.

The key is that my McDonalds tire company can't be confusable with McDonalds restaurants.

There are thousands of large, national and international, companies with the founder's name:

Boeing
Bombardier
Lockheed
Macys
Chevrolet
John Deere
Kraft
Armour
Trane
Walgreens
Trump hotels and resorts
Marriott
Hilton

and thousands more. We tend to forget that all of these started as an idea in the mind of a single person. Naming the business after themselves feels kind of natural. It also, to alesser extent now than before, identifies the company with a person. Got a problem with Boeing? Well, there is (was) a Bill Boeing that you can go to if you can't get satisfaction. As opposed to some faceless manager who may not have much tied up in the company.

As a practical matter, you may not be able to go to the "name" but as a marketing matter, the feeling that the "name" exists and you could go to them builds a great deal of trust in a company.

John Henry; 5/4/20, 11:22 AM
PuertoRicoSpaceport.com said...: I have a famous name, John Henry that is good for marketing.

I could start a "John Henry's Diner" or a "John Henry's Automotive" Or most any other business named "John Henry's ..." Provided nobody else was using it already for a similar business.

I cannot, for example, start a line of John Henry clothing since someone else already has that trademark. I used to have some of the ties and would show them off.

I might be able to start a line of John Henry shoes since I don't think the company makes shoes. They, on the other hand, might sue me. The key is whether people think that they make the shoes when they don't.

John Henry; 5/4/20, 11:29 AM
PuertoRicoSpaceport.com said...: Once, in my packaging class, one of my students came in and said they had Googled me and got over 10,000 hits.

I know that if you search me you get a couple hundred hits that are actually about me. But 10,000? No way.

They were googling "John Henry" + packaging. There is a huge John Henry packaging company that mainly makes labels and folding cartons.

John Henry; 5/4/20, 11:32 AM
MikeR said...: "Obviously, the usual approach of Justices breaking in and attempting to dominate would be h horrible on a telephone conference call." Hmm. Maybe Thomas, like me, doesn't like to interrupt.; 5/4/20, 11:46 AM
tommyesq said...: iowan2:

McDonalds was formed in 1940, and was franchised by the early 50's. According to Wikipedia, Norman McDonald ran a small "Country Drive-Inn" restaurant in Philpot, Kentucky called simply "McDonald's Hamburgers; Country Drive-Inn" in the 60's, after McDonalds was in existence and had trademark rights in the name. McDonald's forced Norman to remove the arches and add the full Norman McDonald's name to its sign so customers would not be confused into thinking the restaurant was affiliated with the McDonald's restaurant chain. The restaurant is still open.

While I would normally have sympathy for someone being stopped from using their name, if Norman McDonald utilized arches, it seems like he was deliberately trying to cash in on McDonald's fame and good will.; 5/4/20, 12:17 PM
Otto said...: Read " Licensed To Lie" to get a feel of how rude and irreverent the justices are in supreme court hearings . They act like a bunch of bullies.
Once we get back to normal, they will revert back to their old form.; 5/4/20, 12:31 PM
Left Bank of the Charles said...: I’ve been seeing TV adds for the custom fit clothing brand MTailor. That sounds a lot like to me like Ann Taylor. I see they got their trademark registered in 2015.; 5/4/20, 12:55 PM
Bruce Hayden said...: This comment has been removed by the author.; 5/4/20, 1:21 PM
tommyesq said...: Left Bank of the Charles said:

I’ve been seeing TV adds for the custom fit clothing brand MTailor. That sounds a lot like to me like Ann Taylor. I see they got their trademark registered in 2015.

Looking at the prosecution history of the MTailor mark on the USPTO website, the examining attorney found no conflicting marks and never referenced the Ann Taylor marks. No real idea how this was missed, and it doesn't look like Ann Taylor objected when the MTailor mark was published for opposition.; 5/4/20, 1:29 PM
Bruce Hayden said...: The ideas that everyone is working around is called Secondary Meaning and Likelihood of Confusion. The value of a mark is that it identifies a specific good or service with that mark in the minds of the relevant public. Once the public started associating the name “McDonalds” and the Golden Arches with the company that Kroc built, then they had trademark rights in those marks. Once you have built sufficient secondary meaning in your mark, you can use the Lanham Act to prevent others from creating a likelihood of confusion with your mark. You can have grandfather rights in a mark federally registered to someone else - you just can’t grow it.

One of the weaknesses of this system of common law trademarks is that until there is a recognized mark, two companies can duke it out in the marketplace and in advertising, to associate a specific mark with their good or service, and not with the other company trying to do the same. So, at one time there very possibly a bunch of people around the country legally selling hamburgers under the name of McDonalds. That can get very expensive. At one point in my career, I worked for a decent sized multinational. The rule was that any new marks had to be approved by our trademark counsel. Every year, it seemed, that marketing would just pick a new name and run with it. And have to walk away from the millions spent in advertising when she (our TM counsel) found out, and that their new mark was inevitably owned by someone else. The solution to this problem is trademark registration, and esp national (federal) registration of a mark (the other function of the USPTO).

I find it interesting that something as nebulous as identification of a mark with something in the eyes of the public can be as valuable as they can be. But last night I saw an ad for cheap Tac Glasses by Bell and Howell. And then I sometimes see another somewhat dissimilar product by the same company at the next commercial break. This most likely wasn’t the same company - just some company that bought usage of the mark (interestingly, you can’t actually sell a trademark, since it is completely intangible, but can sell or license its usage). You go out to buy a major appliance and you see a number of well known brands: GE, Westinghouse, Hotpoint, Emerson, Frigidaire, etc. For the most part, the company selling the appliances have little connections to the company that built the brand, and in the case of big appliances, most are built on the same assembly lines.

Trademarks can be big business. In the last law firm I was with, our IP practice group had maybe 20 attorneys. Only two of us did “hard” IP (patents) while the rest only did “soft” IP, which is most everything else - meaning mostly TM and C/R. The money in C/R law is mostly in the litigation. We had probably a dozen or so whose practices mostly revolved around trademarks and service marks.; 5/4/20, 1:29 PM
tommyesq said...: Left Bank of the Charles said:

I’ve been seeing TV adds for the custom fit clothing brand MTailor. That sounds a lot like to me like Ann Taylor. I see they got their trademark registered in 2015.

Looking at the prosecution history of the MTailor mark on the USPTO website, the examining attorney found no conflicting marks and never referenced the Ann Taylor marks. No real idea how this was missed, and it doesn't look like Ann Taylor objected when the MTailor mark was published for opposition.; 5/4/20, 1:29 PM
JAORE said...: How do they handle it when it's RBG's turn and she's napping?

Do they take turns waking her? Is there a joy button on her chair for helping her regain consciousness fast? Do they let her nap and broadcast snoring for a fixed amount of time?; 5/4/20, 1:29 PM
Ignorance is Bliss said...: bagoh20 said...

The SCOTUS should be addressing issues created by Covid like everyone else has to right now.

Most of the Justices are old. I suspect many have comorbidities. None of them will miss a meal due to the lockdown. Are you sure you want them weighing in on this topic?; 5/4/20, 2:47 PM
Mike (MJB Wolf) said...: Speaking of the Supreme Court one does wonder why CJ Roberts has been so sanguine about his FISA court being treated like a $2 whore by the FBI, and Chrissy Wray’s all over there going “what? It’s all cool now” while the JEH building is burning down behind him. WTF Roberts?; 5/4/20, 3:13 PM
Left Bank of the Charles said...: I see a few possibilities:

(1) Justice Thomas wanted to be on the record as the second questioner for the historic first oral argument by telephone. Now he’ll revert to his previous practice.

(2) Justice Thomas does usually ask questions because he hangs back to let others and first and the questions he would ask have already been asked by someone else. That wasn’t the case when he was forced to go second, so he couldn’t be sure his questions would be asked.

(3) Justice Thomas finds the regular style of asking questions in oral argument to be rude and doesn’t want to participate in the rudeness.; 5/4/20, 3:51 PM
gg6 said...: Yes, this is kind of saddening - a group of what we are led culturally to believe are among the brightest and best of our society on its most important subject - Constitutionality! - are actually like grammar school children who need strict rules and discipline to behave civilly. Egads.; 5/4/20, 4:50 PM
chickelit said...: bagoh20 said...The SCOTUS should be addressing issues created by Covid like everyone else has to right now. Covid issues are currently the most important threats ever to our Constitution. They really do not have time for anything else. On the other hand, it would probably lead to wiser decisions later when the hysteria has cleared and people can think beyond fight or flight, and we can look back to see if running off the cliff was the best strategy for our herd.

All in good time. SCOTUS can't just drop pending matters. And besides, just as COVID-19 is the leading cause of death -- leaving no room for other causes -- so too will lockdown v. Constitutional conflicts occupy the future of the SCOTUS calendar. Plus it's an election year and approximately half of America despises Trump so much that they're willing to keep the lockdown going for partisan reasons.; 5/4/20, 4:52 PM
The Godfather said...: I never argued before the Supremes, but I vividly remember my last argument before the DC Circuit. One of the Judges asked me whether a key issue in our case had been raised (by prior counsel) in the District Court complaint. I was ready for that (of course), and I said, Yes, It was, and my colleague is pulling the specific page reference from the record on appeal. At that point one of the Judges on the panel, Judge Tatel (who is blind, and I believe has been blind since before he was appointed to the bench), spoke up and said, Yes, it's at p. ___ of the record on appeal. When you are arguing before a judge who is that well prepared, you can't mess around. We lost 3-0, but not for lack of a citation.; 5/4/20, 4:58 PM
Kevin said...: How slow of a news day is it when "Thomas Asks Two Questions" is newsworthy?

Because today was that slow.; 5/4/20, 5:00 PM
RNB said...: "How do they handle it when it's RBG's turn and she's napping?"

[On the island of Laputa] "those Persons who are able to afford it always keep a Flapper (the Original is Climenole) in their Family, as one of their Domesticks ...the Business of this Officer is, when two or more Persons are in Company, gently to strike with his Bladder the Mouth of him who is to speak, and the right Ear of him or them to whom the Speaker addresses himself." -- 'Gulliver's Travels,' Jonathan Swift; 5/4/20, 5:01 PM
Josephbleau said...: “I have a famous name, John Henry that is good for marketing. “

John Henry was a steel driving man? I can’t imagine what “industry” would use that in marketing? Rock drills?; 5/4/20, 5:09 PM
Char Char Binks, Esq. said...: If I had a business, I wouldn’t name it Char Char Binks anything. If something went wrong, I’d need to be able to skate. I’d probably name it Bruce Hayden’s, or something line that. John Henry’s Chris’ Ruth Steak House has a nice ring to it.; 5/4/20, 5:15 PM
Richard Dolan said...: "Maybe this experiment in order will affect how the Justices go forward with their courtroom theatrics if and when the social distancing ends."

Which approach is better depends on who you believe is the real audience for the justice's questions, and whether the point of the questions is really to clarify an argument already made in detailed written submissions or instead to make a point to the other justices (regardless of the attorney's answer). In the lower courts, I think questions from the bench are mostly intended to clarify an argument, or let the judge see whether a party has a persuasive response to whatever is bothering the judge about the party's argument. I don't think that's what's the main point or purpose of questions during oral arguments at SCOTUS, though. Instead, the justices get to make points or (essentially) arguments that might be too long to air during their weekly conferences when they vote on these cases. Of course, even after the vote they exchange memos and debate various issues raised by a draft opinion, but at that stage each has taken a position and it's always harder to change at that stage (because you have to admit your first vote was mistaken).; 5/4/20, 5:28 PM
Jon Ericson said...: "If and when" lol.; 5/4/20, 6:18 PM
Theranter said...: The Godfather "Judge Tatel (who is blind)..."

Interesting coincidence, Justice Thomas has an awesome clerk that is blind (and has been since an infant).; 5/4/20, 6:55 PM
narayanan said...: I have heard the term ADVERSARIAL used to characterize USA legal process.

Is it so all the way to SC or only at the first trial stage?; 5/4/20, 7:44 PM