2/2. Sen. Amy Klobuchar (D-MN), Sen. Mike Lee (R-UT), and Sen. Charles Schumer (D-NY) introduced S 328 [LOC | WW], an untitled bill that would amend the Trademark Act to enable state and federal government entities to obtain trademarks in their own flags and insignia.

This is a re-introduction of a bill from the 113th Congress. See, S 1816 [LOC | WW], introduced by Sen. Klobuchar, Sen. Lee, and Sen. Schumer on December 12, 2013. The companion bill in the House was HR 3713 [LOC | WW], introduced by Rep. Hakeem Jeffries (D-NY) on December 12, 2013. No action was taken on either of those bills. A companion bill has not yet been introduced in the House in the current Congress.

This bill was referred to the Senate Judiciary Committee (SJC). The sponsors are members.

15 U.S.C. § 1052 provides, in part, that "No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless ..."

Section 1052 then enumerates numerous categories that cannot be trademarked. For example, subsection (a) lists "immoral, deceptive, or scandalous matter", among other things.

Subsection (b) lists this: "Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof."

This bill would amend this to let federal and state government entities trademark their own flags and insignia.

The Trademark Act, as amended by this bill, would read, in relevant part, that "No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it ... (b) Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof , except that this subsection shall not prevent the United States, or any State, municipality, county, political subdivision, or other governmental authority in the United States, from obtaining registration under this Act of any mark that consists of or comprises its own flag, coat of arms, or other official insignia." (Language added by S 328 is shown in red.)

Freedom of Speech. News media often publish photographs, graphics or other copies of the insignia of government entities when reporting on the activities and operations of those government entities. People engaging in commentary or criticism of government entities often use the flags or insignia of those government entities.

Hence, this bill might enable government agencies to attempt to suppress Constitutionally protected speech.

On the other hand, one element of a civil cause of action for trademark infringement under 15 U.S.C. § 1114 is "such use is likely to cause confusion, or to cause mistake, or to deceive". Similarly, one element of the crime of trafficking counterfeit marks under 18 U.S.C. § 2320 is "the use of which is likely to cause confusion, to cause mistake, or to deceive".

Defendants would assert that their use of the marks were not likely to cause confusion. However, the DOJ has a history of seizing domain names by warrant (without notice or hearing) rather than by judgment (after notice, hearing and other elements of due process). See, for example, story titled "DOJ/FBI Seize Domain Names by Warrant" in TLJ Daily E-Mail Alert No. 2,433, August 21, 2012.

Interstate Commerce. The Trademark Act was enacted pursuant to the Congress's power to regulate interstate commerce. It purpose is to protect consumers in the market place, by enabling them to identify products and producers, and to distinguish between competing products. It also enables producers to protect their investments in building reputation with consumers, and hence, incents them to develop good reputations.

But, state and federal governments engage in little production, and little commerce.

However, Rep. Ted Poe (R-TX) stated in a 2013 release on the occasion of the introduction of HR 3713 (113th Congress) that "Producing counterfeit items with the logo of a local government or law enforcement agency should not be a source of profit, it should be a crime."

Thus, if this bill were to be enacted, it might enable government entities to derive revenue from licensing others who manufacture, distribute and sell products that include the flag or insignia of those government entities.

Fraud and Impersonation. The 2013 release also quotes a city official as stating that "The current state of the Lanham Act offers little Federal protection for cities, counties, and states in protecting these official marks from fraud and abuse."

People might use flags and insignia on clothing, in paper or electronic communications, or in web sites, to impersonate government employees or offices, or to otherwise engage in fraud or abuse. But, there are already statutes that address this. 18 U.S.C. § 912 and 18 U.S.C. § 913 already criminalize impersonating a federal employee. States have similar criminal prohibitions. There already is protection.

Section 912 provides in full that "Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both."

Section 913 provides in full that "Whoever falsely represents himself to be an officer, agent, or employee of the United States, and in such assumed character arrests or detains any person or in any manner searches the person, buildings, or other property of any person, shall be fined under this title or imprisoned not more than three years, or both."

Thus, in the context of fighting fraud by impersonation, this bill would at best be redundant.

Domain Name Seizures. It is possible that if this bill were enacted into law, then the DOJ would use it as the basis for seizing domain names of web sites that contain trademarked insignia of government entities. The DOJ has seized domain names. In particular, it had seized domain names of web sites that engage in violations of intellectual property rights.

Also, the DOJ has a history of playing fast and loose with its statutory authority to seize domain names, by warrant, without affording due process of law to the domain name holder.

Sen. Klobuchar did not issue a release regarding the introduction of S 238, and her office did not promptly respond to a request for information from TLJ.

2/3. Rep. Michael Honda (D-CA) and others introduced HR 684 [LOC | WW], the "Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2015", a bill to deprive the Washington Redskins football team of its trademarks containing the term "redskin".

The bill was referred to the House Judiciary Committee (HJC).

This bill would amend 15 U.S.C. § 1052 to provide that "A mark consisting of or including the term `redskin' or any derivation of the term 'redskin' shall be conclusively presumed to consist of matter which may disparage persons if (1) the mark has been, is, or is intended to be used in commerce in connection with references to or images of one or more Native American persons or peoples, or to Native American persons or peoples in general ..."

This bill would also amend 15 U.S.C. § 1064 to provide that the U.S. Patent and Trademark Office (USPTO) "shall cancel a registration of a mark containing the term 'redskin' or any derivation of the term 'redskin' if -- (A) the mark has been or is used in commerce in connection with references to or images of one or more Native American persons or peoples, or to Native American persons or peoples in general ...".

1/9. Rep. Ted Poe (R-TX) and others introduced HR 236 [LOC | WW], the "Foreign Counterfeit Merchandise Prevention Act", a bill to amend both the Trade Secrets Act and the Lanham Act to allow the Department of Homeland Security's (DHS) U.S. Customs and Border Protection (CBP) to share certain information with the owners of copyrights and registered marks, to assist the CBP in blocking entry into the U.S. of counterfeit products.

This bill would not apply to all imported products. It would only apply to "critical merchandise", which the bill defines to include "semiconductors", as well as certain aircraft and automobile items, and anything that the DHS determines "could ... pose a danger to the health, safety, or welfare of consumers, or to the national security".

There are three original cosponsors, Rep. Blake Farenthold (R-TX), Rep. Zoe Lofgren (D-CA), and Rep. Steve Chabot (R-OH). This bill was referred to the House Judiciary Committee (HJC). All of the sponsors are members.

Rep. Poe, Rep. Lofgren, and Rep. Chabot have long been introducing versions of this bill. See, HR 4216 [LOC | WW] and HR 6654 [LOC | WW] in the 112th Congress, and HR 22 [LOC | WW] in the 113th Congress. The HJC's Subcommittee on Crime, Terrorism and Homeland Security held a hearing on March 28, 2012. However, none of these bills has been passed by the HJC or the full House.

While this bill would enable the CBP to better block counterfeit products from entering the U.S., it would also lead to the disclosure of trade secrets and confidential supply chain information regarding non-infringing products.

Information sharing can harm lawful importers, for example, when CBP provides sensitive information to the rights holders who are their competitors. The sharing of information by the CBP can entail providing competitors with information regarding where goods are made, by whom, when, and at what prices. It can also entail revealing sensitive information about the identity of wholesalers, exporters and other parties.

HR 236 (114th Congress) is substantially identical to HR 22 (113th Congress). For a detailed summary of HR 22, and hence, HR 236, see story titled "Representatives Reintroduce Bill to Allow CBP to Share Information with IP Rights Holders", in TLJ Daily E-Mail Alert No. 2,524, February 18, 2013.

Rep. Poe (at right) stated in a release on January 9, 2015 that "CBP officers are on the front lines of trade enforcement, but they are not allowed to share information with the people most knowledgeable about the authenticity of their products the right holders".

He continued that "Instead, they are faced with the nearly impossible task of inspecting all of the counterfeit and potentially dangerous goods ñ from pharmaceutical drugs to movies, blow dryers and video games -- to determine what is genuine and what is counterfeit. We are setting them up for failure. This broken system is hurting American designers and manufacturers."

Rep. Lofgren stated in this release that "CPB should have the authority to share the information needed to block suspected counterfeit physical products ... Doing so will protect American businesses and consumers from harm. When consumers and companies are duped into receiving goods they never intended to purchase, this can not only damage their product or service, but when those products affect public safety and health, it can be incredibly dangerous."

The American Free Trade Association (AFTA), which describes itself as a voice for parallel or secondary market traders, stated in a release on January 16, 2015 that "A businesses' supply chains reflects its own creation of a proprietary network including different companies located throughout the World that produce, handle and/or distribute a specific product or products to a common end user. AFTA members have unique and confidential supply chains enabling U.S. consumers to purchase authentic, brand name, competitively priced merchandise at retail outlets of all genre and variety throughout the Country. These supply chains are proprietary trade secrets that protect a businesses' ability to compete fairly and better level out a highly aggressive and competitive global marketplace."

The AFTA argued that "Maintaining the confidentiality of U.S. businesses' supply chain information is critical to the viability of a thriving, competitive domestic marketplace."

See also, story titled "Representatives Introduce Revised Version of Customs Information Sharing Bill" in TLJ Daily E-Mail Alert No. 2,492, December 17, 2012, and story titled "titled "Rep. Poe and Rep. Chabot Introduce Bill to Allow Customs to Share Information with Rights Holders" in TLJ Daily E-Mail Alert No. 2,354, March 23, 2012.

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The House will meet in pro forma session only.

The Senate will not meet.

Supreme Court conference day. See, 2014-2015 calendar. Closed to the public.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CBS v. FCC, App. Ct. No. 14-1242. This is a petition for review of the FCC's November 10, 2014 protective orders regarding access to confidential video programming contracts in pending merger review proceedings involving (1) Comcast and Time Warner Cable and Charter Communications and (2) AT&T and Directv. See, brief of the FCC. This case is the first of three on the Court's schedule. Judges Tatel, Srinivasan, and Wilkins will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:30 AM - 12:00 NOON. The Center for Strategic and International Studies (CSIS) will host a panel discussion titled "China Reality Check: Has the Hard Landing in China Already Started?". See, notice. Location: CSIS, 1616 Rhode Island Ave., NW.

The House will not meet.

The Senate will meet at 3:00 PM. It is scheduled to resume consideration of HR 240 [LOC | WW], the Department of Homeland Security (DHS) appropriations bill.

8:30 AM - 5:30 PM. The New America Foundation (NAF) and CNN will host a conference titled "Cybersecurity for a New America: Big Ideas and New Voices". The speakers will include Admiral Mike Rogers (Director of the NSA and Commander of the U.S. Cyber Command). Webcast by CNN. See, notice. Location: Ronald Reagan Building and International Trade Center, Pavilion Room, 1300 Pennsylvania Ave., NW.

8:30 AM. Registration.

9:00 AM. Opening remarks by Anne-Marie Slaughter (NAF).

9:10 AM. Speech by Dlshad Othman titled "What is it Like to Be Hacked for Your Beliefs?".

9:20 AM. Panel titled "Is Cybersecurity the Next Digital Divide?". The speakers will be Daniel Gillmor (ACLU), Seda Gürses (NYU), and Tara Whalen (Google).

10:30 AM. Speech by Heather Perkins (U Denver) title "New and Old Ethics: What Can Kant Teach Us About Cybersecurity?".

11:30 AM. Discussion of book titled "@War: The Rise of the Military Internet Complex". The speakers will be Anne Marie Slaughter (NAF) and Shane Harris (NAF).

11:00 AM. Admiral Mike Rogers (Director of the NSA and Commander of the U.S. Cyber Command will give a speech titled "The National Security Perspective".

12:00 PM Lunch.

12:45 PM. Patrick Tucker (DefenseOne) will give a speech titled "Big Data and the Internet of Things".

12:55 PM. Siobhan Gorman (Brunswick Group) will give a speech titled "How Are Reporters and the Corporate Sector Talking About Cybersecurity?".

1:05 PM. Katie Moussouris (HackerOne) will give a speech titled "Putting a Bounty on Vulnerabilities".

1:20 PM. Bruce Schneier (Harvard Law School) will give a speech.

1:50 PM. Panel titled "Do We Need a Cyber Red Cross?". The speakers will be Duncan Hollis (Temple University law school), Natalie Black (United Kingdom Cabinet Office), Tom Millar (US-CERT), and François Stamm (Red Cross).

3:05 PM. Aileen Alexander (Korn Ferry) will give a speech titled "The Hunt for Talent: How Are Corporate Boards Faring?".

3:15 PM. Panel titled "Where Can We Find the Next Generation of Cyber Warriors?". The speakers will be Lt. Gen. Edward Cardon (U.S. Army Cyber Command), Molly Sauter (Harvard Law School), and Nate Fick (Endgame).

4:30 PM. Panel titled "Protecting the Net From Advanced Persistent Threats". The speakers will be Alex Stamos (Yahoo), Morgan Boire (Intercept), and Cheri McGuire (Symantec).

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. See, Rep. McCarthy's schedule. The House is scheduled to consider HR 5, the "Student Success Act", during the week of February 23-27. See, February 18 Rules Committee Print [625 pages in PDF].

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Importance of Cross-Border Data Flows for Traditional Industries". The speakers will be Robert Atkinson (ITIF), Andrea Glorioso (Delegation of the European Union to the USA), Jonathan McHale (Deputy Assistant USTR for Telecommunications Policy), and ___. Free. Open to the public. Live and archived webcast. See, notice. Location: ITIF/ITIC, Suite 610, 1101 K St., NW.

9:15 - 11:00 AM. Georgetown University's (GU) Georgetown Center for Business and Public Policy (GCBPP) will host an event titled "Rewriting the Communications Act". The opening speaker will be David Farber (Carnegie Mellon University). There will also be a panel discussion. The speakers will be Larry Downes, Peter Rysavy, Glenn Woroch, John Mayo, and Carolyn Brandon. Free. Open to the public. No CLE credits. Breakfast will be served. See, notice. Location: Location: National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM - 1:00 PM. The Senate Banking Committee (SBC) will hold a hearing titled "The Semiannual Monetry Policy Report to the Congress_". The witness will be Janet Yellen (FRB Chairman). Webcast. See, notice. Location: Room 106, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Tax Reform, Growth and Efficiency". See, notice. Location: Room 215, Dirksen Building.

5:00 PM. The House Intelligence Committee (HIC) will hold a closed hearing on undisclosed matters. It is titled "Ongoing Intelligence Activities". No webcast. See, notice. Location: Room HVC-304, Capitol Building.

TIME CHANGE. 10:00 AM. 11:30 AM. The House Homeland Security Committee will hold a hearing titled "The Administration’s Cybersecurity Legislative Proposal on Information Sharing". The witnesses will be __. See, notice. Location: Room 311, Cannon Building.

10:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing on undisclosed matters. It is titled "Worldwide Threats". No webcast. See, notice. Location: Room HVC-304, Capitol Building.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Monetary Policy and the State of the Economy". The witness will be Janet Yellen (FRB Chairman). See, notice. Location: HVC-210, Capitol Building.

10:00 AM. The House Science Committee (HSC) will hold a hearing on the FY16 budget proposal for the Department of Energy (DOE). The witness will be Ernest Moniz (Secretary of Energy). Webcast. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Preserving the Multistakeholder Model of Internet Governance". The witnesses will be Fadi Chehadé (CEO of ICANN), David Gross (Wiley Rein), and Lawrence Strickling (head of the NTIA). Webcast. Location: Room 253, Russell Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Congress and U.S. Tariff Policy". The witnesses will be __. Webcast. See, notice. Location: Room 215, Dirksen Building.

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "The Uncertain Future of the Internet". The witnesses will be __. Webcast. See, notice. Location: Room 2322, Rayburn Building.

10:30 AM. The House Appropriations Committee's Subcommittee on Commerce, Justice, Science, and Related Agencies will hold an oversight hearing on the Department of Commerce (DOC), Department of Justice (DOJ), and NASA. The witnesses will be the relevant Inspectors General. See, notice. Location: Room H-309, Capitol Building.

12:00 PM. The Federalist Society’s Telecommunications & Media Practice Group will host a panel discussion titled "The Future of Media -- Is Government Regulation In Today's Media Landscape Over The Top?". The speakers will be Joshua Wright (FTC Commissioner), Patricia Paoletta (Harris Wiltshire & Grannis), Jeff Blum (DISH Network), Rick Kaplan (National Association of Broadcasters), Barry Ohlson (Cox Enterprises), and Ryan Radia (Competitive Enterprise Institute). Lunch will be served at 12:00 NOON. The program will begin at 12:30 PM. Free. See, notice. Location: George Washington University Law School, Jacob Burns Moot Court Room, 2000 H St.,  NW.

1:00 - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Engineers’ View of Network Management, Specialized Services, and Net Neutrality". The speakers will be Doug Brake (ITIF), Charles Jackson (George Washington University), Jon Peha, and ___. Free. Open to the public. Live and archived webcast. See, notice. Location: ITIF/ITIC, Suite 610, 1101 K St., NW.

2:15 - 3:45 PM. The Brookings Institution (BI) will host a panel discussion titled "European Financial Regulation and Transatlantic Collaboration". See, notice. Location: BI, 1775 Massachusetts Ave., NW.

9:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "NSA Overview". No webcast. See, notice. Location: Room HVC-304, Capitol Building.

9:30 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of the nominations of Michelle Lee (to be head of the USPTO) and Loretta Lynch (Attorney General). The agenda also includes consideration of four nominees for the U.S. District Court: Alfred Bennett (USDC/SDTex), George Hanks (USDC/SDTex), Jose Olvera (USDC/SDTex), and Jill Parrish (USDC/DUtah). The agenda also includes consideration of five nominees for the Court of Federal Claims: Nancy Firestone, Thomas Halkowski, Patricia McCarthy, Jeri Somers, and Armando Bonilla. The agenda also includes consideration of S 178, the "Justice for Victims of Trafficking Act of 2015", and S 166, the "Stop Exploitation Through Trafficking Act of 2015". Live and archived webcast. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Research and Technology will hold a hearing on the FY16 budget proposals for the National Science Foundation (NSF) and National Institute of Standards and Technology (NIST). The witnesses will be France Cordova (Director of the NSF), Daniel Arvizu (Chariman of the National Science Board), and Willie May (acting Director of the NIST). Webcast. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 1:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Asia and the Pacific will hold a hearing titled "Across the Other Pond: U.S. Opportunities and Challenges in the Asia Pacific". See, notice. Location: Room 2172, Rayburn Building.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade will hold a hearing titled "Update: Patent Demand Letter Practices and Solutions". The witnesses will be __. Webcast. See, notice. Location: Room 2322, Rayburn Building.

10:30 AM. The Senate Appropriations Committee's (SAC) Subcommittee on Commerce, Justice, Science, and Related Agencies will hold a hearing on the FY16 budget for the Department of Commerce (DOC). The witness will be Penny Pritzger (Secretary of Commerce). See, notice. Location: Room 192, Dirksen Building.

10:30 AM. The Federal Communications Commission (FCC) will host an event titled "Open Meeting". The tentative agenda includes adoption of the FCC's Report and Order on Remand, Declaratory Ruling, and Order reclassifying broadband internet access service (BIAS) as a Title II telecommunications service, and creating a regulatory regime for internet interconnection. Open to the public. Webcast. Location: FCC, Commission Meeting Room, 445 12th St., SW.

1:30 PM. The House Judiciary Committee (HJC) will hold a hearing titled "The U.S. Copyright Office: Its Functions and Resources". The witnesses will be __. Webcast. See, notice. Location: Room 2141, Rayburn Building.

1:30 PM. The House Appropriations Committee's Subcommittee on the Legislative Branch will hold a hearing on the budget for the Library of Congress (LOC) and Architect of the Capitol. The witnesses will include James Billington. See, notice. Location: Room HT-2, Capitol Building.

Supreme Court conference day. See, 2014-2015 calendar. Closed to the public.

9:00 AM - 12:00 NOON. The Brookings Institution (BI) will host an event titled "China's Security and Foreign Policies: Comparing American and Japanese Perspectives". See, notice. Location: BI, 1775 Massachusetts Ave., NW.