It's what they're supposed to do. The system is designed with the idea that the Supreme Court will be restrained, resolve issues directly in front of them narrowly, not rule on issues not sufficiently before the court, avoid Constitutional questions if possible, and so on.
It doesn't have to be overridden, overruled, or ignored. It's a concurring opinion and has no legal weight, so things will proceed as usual unless this judge can get the majority of the court to agree with him at some point.
You could certainly make a similar argument, but I'm not convinced you're going to get a court to accept it. The First Amendment has never been recognized as absolute, and while I personally favor an expansive reading of the First Amendment I think you'll have a hard time convincing a court that the DMCA anti-circumvention provision violates it. All copyright covers information, so the same argument could be made with respect to any copyright, which clearly goes against the intent of the Constitution. Even if you could get there in patents, I don't think it likely it would be expanded.
In case a lot of people aren't making it to the bottom of the original post...
The language everyone is fixated on comes from a concurring opinion, not the opinion of the majority of the court, and is therefore not binding precedent. More interesting academically, at least unless and until Mayer can persuade a majority or the Supreme Court adopts his viewpoint (which isn't likely to happen soon).
It's a little more complicated than the article points out. Trademark dilution as a legal theory has been around since at least the 1920s. States started enacting their own dilution statutes in the 1940s, and by the time you get the federal law on this a majority of states already had their own versions of the law. Part of the rationale for Congress to enact the federal statute regarding dilution (which, as I said, is a concept they didn't invent but had been around something like 70 years) was to unify the law instead of having a bunch of competing state causes of action. That's not a bad idea in and of itself (uniformity). Another rationale was that it would encourage trademark owners to invest in their marks and make them famous, but that seems pretty speculative and I'm not convinced the law has had that effect.
You could make that argument, I suppose. I know I can see certain fact situations that on their face appear frivolous, and in my view the lawyer's duty should then be to investigate further to see if there really is anything to it. Our firm has turned down cases for this reason. We don't want to be associated with frivolous lawsuits.
At a very basic level, however, it is the trademark attorney's job to make some sort of determination, because bringing an action he/she believes to be frivolous is a violation of the rules of professional responsibility.
Trademark owners can lose for failure to police not only through the mark becoming generic, but also through a defense like laches (there was a successful laches defense recently, I think, in some Fraternity-related case where the trademark owners waited a couple decades or so to bring an action). So if you're not taking steps to police use that you may not really care about, I suppose that use could evolve into something you do care about and your previous inaction used against you as an equitable defense.
Should be a Fair Use. Despite the fact that Huckabee is a jackass, positions on Fair Use should remain consistent. Of course, the $25K settlement is far less than it would cost to take the case to trial, even if Huckabee could win.
They do have viable common law rights, and it's too bad you have to do things defensively to protect against abuse of the system. But these days particularly, with every business on the internet, it makes sense to spend the $1000 or so to get the registration. If Comodo hadn't dropped this, Let's Encrypt would spend a lot more than that having to oppose these marks or deal with a Comodo registration.
The problem here, apart from Comodo's bad behavior, is that the trademark examiner didn't conduct a proper search. If he had, the Let's Encrypt common law mark would have turned up.
They do have the ability to search that. I have received rejections based on non-registered uses that the examiner found on the internet. But often it seems like the trademark examiners just rely on their application/registration database (like patent examiners rely on the pending/issued patent database) and don't look beyond that.
You can still get a registration even if a non-registered entity is already using the name, but you can't go in and stop them. Traditionally this is limited by geographic location. For example, if I own a chain of restaurants in Los Angeles, and you're in New York and we have the same name...if I was there first but didn't register it and you did, you have presumptive nationwide rights to the name EXCEPT in Los Angeles, where I priority over you. You can't come into L.A. and stop me using the name.
This was relatively easy to figure out in the pre-internet days, but of course now everyone is online so the boundaries become a bit more fuzzy.
Zarvus - with respect to the mark you linked, it looks like the USPTO is about to let that one go through to publication. The Examiner has send there are no confusingly similar registered or pending marks. Just some formalities, and they're going to let it through I predict.
The trademark examiner might well let it go through to publication, though he shouldn't. But that's what the opposition proceeding is for - to make sure that marks the USPTO has let go through wrongfully to publication can still be opposed by a third party before they actually get registered.
The problem is, maintaining an opposition proceeding isn't exactly cheap.
Let's Encrypt can oppose if/when the Comodo applications are published.
Let's Encrypt should have filed for registration previously, and they wouldn't be in this situation. Even if Comodo get the registration, however, they can't stop Let's Encrypt from using the mark in places where Let's Encrypt has priority (and when you're talking about the internet, that's potentially anywhere, though I guess it would be limited to places where they can show "sales").