WASHINGTON: The US Supreme Court on Monday heard arguments in a case by teleconference for the first time — breaking tradition due to the coronavirus pandemic — in proceedings involving hotel reservation website Booking.com that went rather smoothly, with even typically silent Justice Clarence Thomas asking questions.

The nine justices engaged in arguments in the trademark case not in a courtroom but by participating remotely using a dial-in format to combat the spread of the pathogen. The arguments — which ran about 15 minutes over the scheduled one hour — proceeded with only the occasional glitch, with Chief Justice Roberts playing the role of traffic cop and timekeeper.

Emphasising the unique nature of the proceedings, Thomas, a conservative justice who almost never asks questions during arguments, embraced the new format and queried government lawyer Erica Ross about her arguments on behalf of the US Patent and Trademark Office seeking to prevent Booking.com from trademarking the site’s name. Thomas later asked a second round of questions of Lisa Blatt, the lawyer presenting Booking.com.

He asked whether trademarking a website name would be similar to trademarking a 1-800 toll-free telephone number. Thomas last asked a question in March 2019, which was three years after his previous one. As the longest serving justice, Thomas asked his questions after Roberts, his voice echoing on the line, asked his own questions of Ross.

The justices peppered Ross with tough questions, suggesting skepticism about the government’s arguments. Several justices also raised concerns with Blatt that allowing a trademark would give the company monopoly power, which could hurt other companies and consumers.

Roberts directed which justice was up to ask questions and cut off lawyers if they went on too long in an effort to keep the argument close to its scheduled one-hour length When it was Justice Stephen Breyer’s turn, he launched into his question before checking himself. “Good morning, anyway,” he said.

There was a brief silence when Roberts called on Justice Sonia Sotomayor, suggesting she had not unmuted her phone. Roberts called on her for a second time.

“I’m sorry, Chief,” she said, after another brief pause.

The justices over the next two weeks are set to conduct arguments in 10 cases by teleconference. In another first, the court is providing a live audio feed, making these the first arguments that the public can hear live. Cable TV network C-SPAN said it plans to broadcast that feed in all the cases.

Rather than the wide-open questioning exhibited during typical cases in the justices’ ornate courtroom, the court has tweaked the format for the teleconference arguments so justices will take turn asking questions in order of seniority.

Booking.com, a unit of Norwalk, Connecticut-based Booking Holdings Inc, along with the rest of the travel industry, has been slammed by the coronavirus pandemic, which has caused tourism and business travel to evaporate worldwide.

The Patent and Trademark Office is appealing a lower court decision allowing the trademark because by adding ”.com” to the generic word “booking” it became eligible for a trademark. The online reservation service filed several trademark applications in 2011 and 2012.

A Patent and Trademark Office tribunal in 2016 rejected those applications, saying Booking.com referred generically to the common meaning of booking lodging and transportation and cannot be used exclusively through a federal trademark registration. Under U.S. law, only terms that distinguish a particular product or service from others on the market can be trademarked.

Booking.com appealed, presenting a survey that showed that 74 percent of consumers identified Booking.com as a brand name. The Richmond, Virginia-based 4th US Circuit Court of Appeals sided with the company last year because the name as a whole is understood by the public to refer to a business.

The court will hear arguments on Monday, Tuesday and Wednesday of this week and the same days next week. The biggest cases to be considered by teleconference are three that focus on the question of whether President Donald Trump can keep his financial records including tax returns secret. Those cases will be argued on May 12.

The Supreme Court building has been closed to the public since March 13 due to the pandemic. The justices have met only via teleconference, and have issued rulings only online.

The coronavirus has proven to be particularly dangerous in elderly people, especially those with underlying medical issues. Three of the nine justices are over age 70: Ginsburg (87), Breyer (81) and Thomas (71).

Published in Dawn, May 5th, 2020