High court holds first live audio argument with a few hitches

The U.S. Supreme Court held oral arguments Monday on a live audiostream for the first time, and the proceedings went off with a few glitches but a different format.

Chief Justice John G. Roberts Jr. acted as moderator, and the justices, in order of seniority, asked two questions of each attorney in a trademark dispute.

Justice Sonia M. Sotomayor seemingly forgot to unmute herself when Roberts called on her the first time, and Justice Clarence Thomas -- known for rarely asking questions during oral argument -- posed two questions each for attorneys on opposing sides of the case.

The justices frequently followed up each other's questions and the format gave attorneys Erica L. Ross, representing the U.S. Patent and Trademark Office, and Lisa S. Blatt of Williams & Connolly LLP for Booking.com BV more time to answer.

"It was very different from the free-for-all during in-person oral arguments. It's a different dynamic," said Theodore J. Boutrous Jr., a Los Angeles-based partner with Gibson, Dunn & Crutcher LLP who has experience arguing before the high court and recently argued a case online before the U.S. Court of Appeals for the D.C. Circuit.

"There was also sort of an equalizing effect in getting to listen to what was essentially a conference call with two superb attorneys and the justices," Boutrous said.

For the attorneys, that meant they had more of a chance "to get out their full answer," he said. "It gives everyone more time."

"Chief Justice Roberts did a nice job doing what the moderator had to do," Boutrous said. "I thought it was fascinating."

The downside, he added, is that attorneys speaking by phone to justices they cannot see lose the opportunity to read the room and adjust their arguments accordingly.

The case itself involves the question of whether the company can register trademarks containing the term "Booking.com" for online hotel reservations. The U.S. Patent and Trademark Office denied the registration, saying the word "booking" is generic and cannot be transformed into a protectable mark by adding ".com."

Booking.com successfully appealed the decision to district court and the 4th U.S. Circuit Court of Appeals. The patent office appealed to the high court. United States Patent and Trademark Office et al. v. Booking.com BV, 19-46 (S. Ct., petition filed July 5, 2019).

Ross said the high court should follow its own 19th century precedent, Goodyear's India Rubber Glove Manufacturing Co. v. Goodyear Rubber Co., 128 U.S. 598 (1888), but Roberts questioned whether the court should follow a "130-year-old case" when more recent laws have been passed by Congress since then.

Blatt said the court should follow the "primary significance test," which follows survey results of consumers to determine whether a trademark should be protected. Justice Samuel A. Alito Jr. voiced concern about her expansive proposal. "You are seeking a degree of monopoly power no one could have achieved prior to the internet age," he said.

The attorney disagreed, citing examples of companies selling similar products with similar names.

The U.S. Supreme Court has consistently resisted allowing cameras or recording devices into its chambers. The COVID-19 virus, and the resulting shutdown of its courtroom due to health fears, has changed that -- at least for now. More oral arguments are scheduled during the next two weeks.

Boutrous, who said oral arguments should be televised live under ordinary circumstances, commented that the justices acquitted themselves well.

"Our laboratory of democracy has conducted another experiment," he said. "I think it adds to the court's luster to see and hear the justices work."