So last Monday evening I had the pleasure of attending a talk given by Ron Coleman about the Slants case. (Regular readers know that Ron Coleman of Archer & Greiner and the Likelihood of Confusion blog and Bruce Godfrey of Jezic & Moyse LLC, have been representing me for what seems like forever in a frivolous lawsuit brought by convicted bomber and perjurer Brett Kimberlin.) For background on the Slants case, please read my post Ron Coleman Wins Historic First Amendment Victory in Trademark Case.
In a nutshell, Ron convinced the Federal Circuit Court of Appeals sitting en banc that, as the court held: “The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks.” Accordingly, the court found that the provision in federal law that allows the USPTO to deny or cancel a trademark as “disparaging” is unconstitutional. The decision will undoubtedly serve as a help to the Redskins in protecting their trademark, and is a landmark First Amendment case.
In his talk, Ron told the assembled crowd what the USPTO had done in response to the Federal Circuit’s decision. The answer: precisely nothing. This is, of course, entirely unacceptable — and Ron hinted that he was going to take action, although he couldn’t talk about the specifics just yet.
Indeed he had. On the day after he spoke to us, Ron filed a petition for writ of mandamus, which you can read here. And on the very same day, the Federal Circuit issued an order to show cause. [UPDATE: A commenter corrects this to “an order that the USPTO respond to the petition.” Here is a link to the order. Thanks to commenter mh.] They have until this Tuesday to explain why they have taken it upon themselves to defy the court’s order. Marc Randazza at Popehat compares the USPTO’s inaction to Bartleby’s refrain: “I would prefer not to.”
Guess what, USPTO guys? Your preferences are subordinate to the U.S. Constitution and its First Amendment. Ron Coleman is holding your feet to the fire, and on Tuesday I will close my eyes and savor the aroma of your burning foot-flesh.