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Supreme Court Tele-Argument Brings Minor Hiccups, Thomas Queries

May 4, 2020, 4:52 PM

The U.S. Supreme Court navigated around some minor hiccups as it held its first-ever telephone argument, a session that was broadcast live and included two rare sets of questions from the usually silent Justice Clarence Thomas.

The argument Monday in a trademark case gave people across the country an unprecedented chance to hear a Supreme Court hearing as it happened. It’s the first of 10 arguments the court will hold by phone over the next two weeks, as the justices press ahead with their work amid the coronavirus outbreak.

The 75-minute session, which ran 15 minutes longer than planned, went mostly smoothly. The justices rolled out a new questioning format, going one-by-one in order of seniority rather than following their usual practice of jumping in as they see fit.

The format at one point seemed to catch Justice Sonia Sotomayor with her mute button on. Chief Justice John Roberts had to call on Sotomayor twice when it was her turn to ask questions of Justice Department lawyer Erica Ross. After the second prompt, Sotomayor responded, “I’m sorry, chief,” before asking her first question.

Ross had a similar bump when it was her turn to offer rebuttal, with Roberts having to call on her twice.

At another point, Justice Stephen Breyer’s audio was distorted when he had questions for Lisa Blatt, the lawyer representing Booking.com in the case. The audio improved after a few seconds, and Blatt was able to answer the question.

The case being argued Monday will determine whether businesses can get federal trademark protection for website names such as Booking.com that center on a commonly used word. Booking.com, owned by Booking Holdings Inc., is seeking to be put on a government registry that provides nationwide benefits.

Supreme Court Bows to the Moment With First Streaming Arguments

Thomas, who has said he thinks his colleagues ask too many questions, once went 10 years without speaking at an argument. He last spoke during an argument in March 2019, when he asked a series of questions at the end of a case about racism in jury selection.

As with most of the justices, his queries Monday didn’t give a clear indication of his leanings. He began by telling Ross he had a “couple of questions.” He asked what would happen if Booking.com acquired a “vanity” phone number, like 1-800-BOOKING, and added that 1-800-PLUMBING is a registered trademark.

During Blatt’s argument, Thomas asked her about the test she said should determine whether a website name can be registered as a federal trademark.

Federal registration gives trademark owners protections on top of the rights they already have under state law. Registration can confer exclusive rights in parts of the country where no one was already using the name or image, help owners win lawsuits and put would-be competitors on notice that a trademark is legally protected.

President Donald Trump’s administration says “booking” is a generic term that doesn’t qualify for registration even if “.com” is added at the end. Under federal trademark law, generic terms are those that don’t distinguish a product or service from others on the market.

The administration says registration might let Booking.com sue competitors for using such internet domain names as ebooking.com or hotelbooking.com.

The company says consumers have come to identify Booking.com as a brand that provides valuable reservation services. The company contends that the rejection of its registration applications would put consumers at risk of being misled.

The court will hear three more arguments this week, including a clash Wednesday over the Trump administration’s bid to create a sweeping religious and moral exemption from the Obamacare requirement that employers and universities offer free birth control through their health-care plans. Next week the court will hear two clashes over House and grand jury subpoenas for Trump’s financial records.

The case is U.S. Patent and Trademark Office v. Booking.com, 19-46.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Laurie Asséo, Larry Liebert

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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