Last Monday (April 20th), a Federal Circuit panel upheld the US Patent and Trademark Office’s denial of a trademark registration for Portland-based Asian-American dance-rock band, The Slants, deeming their name offensive to people of Asian descent.
Following the three-person panel’s decision, the US Court of Appeals for the Federal Circuit said it was issuing a Sua Sponte order, vacating the panel’s decision to uphold the trademark office’s refusal to trademark the band’s name, reinstating The Slants’ original appeal, and the US Court of Appeals of the Federal Circuit will now hear the case in front of all the judges, as opposed to a select panel, regarding the constitutionality of the decision.
This is the second time the five-piece have been rejected by the US Patent and Trademark Office.
Simon Tam (a.k.a. Simon Young, founder/leader) formally applied for a trademark back in 2010, but was rejected with the explanation that a substantial portion of the Asian-American community would be offended. Undeterred, Tam tried again in 2011, dropping the “reclaiming a stereotype” position, and instead arguing that there is nothing inherently racist about the word “slants.” The same trademark examiner rejected the application once more.
“I consider the name a point of cultural pride,” Tam explains. “One of the first things people say is that we have slanted eyes [and] I thought, ‘What a great way to reclaim that stereotype […],’ and, in doing so, take away the power from those who try to use it as a term of hate.”
Following the U.S. Patent and Trademark Office’s decision, The Slants’ took their case to the U.S. appeals court, which ruled last Monday that The Slants’ couldn’t trademark their name, because it is disparaging.
Regarding the decision, Tam expresses disappointment, but says he’s “not entirely surprised.”
“We’ve been fighting this battle for nearly six years, and I knew it wouldn’t be easy,” he says. “However, I think it is terrible that the Trademark Office can easily dismiss the opinions of Asian-Americans on the issues without actually talking to anyone in our community.”
Since 2007, The Slants have performed at over seven hundred events across North America, including headlining appearances at Asian American festivals/conferences in dozens of states, without any formal complaints. The band has also raised over one million dollars for charitable organizations, used their influence to help increase voting rates in the Asian Pacific Islander community, and leads workshops on Asian American issues across the country. In fact, Tam has been the keynote presenter at numerous Asian American social justice conventions. He has also delivered several TED talks discussing the social justice and activism. Both Tam and the band has received numerous accolades for their antiracism work.
“Our band uses our name to refer to our perspectives and experiences in life as people of color. It’s our “slant,” if you will – and we choose to empower others that way,” Tam says, leaving many scratching their heads as to why the band cannot get a trademark on their name.
Judge Kimberly Moore wrote an unprecedented twenty-three page separate opinion entitled Additional Views, which questions the constitutionality of Section 2(a) of the Lanham Act, the law which has been used to justify the denial of The Slants’ registration. She states, “Trademarks – which are applied to private goods to identify the source of the goods for consumers – are private speech, not ‘government speech.’” And while she continues to affirm that The Slants can still keep the band name, they have to do so without the substantive benefits of a trademark registration, leaving the group, and its fan base, extremely frustrated.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”