Portland, Oregon-based Asian American rock band, The Slants, received some disappointing news this week when the U.S. Court of Appeals in the Federal Circuit upheld a US Patent and Trademark Office’s decision that the band’s name could not be trademarked on the grounds that it is being used as a racial slur that a majority of the public would find disparaging. The Federal Circuit court agreed in the majority opinion, citing the Patent Office’s Appeal Board decision where they decided that the name The Slants “would have the ‘likely meaning’ of people of Asian descent but also that such meaning has been so perceived and has prompted significant responses by prospective attendees or hosts of the band’s performances.”
In 1946, the federal government passed the Lanaham Act, the principle legislation that governs the registration of trademarks. Among other stipulations, the Act prohibits the registration of any trademark that “consists of or comprises of immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute”. Federal Circuit courts have previously interpreted this to include racial slurs such as “Heeb”, “Squaw Valley”, and — of course — the “Washington Redskins” (which is currently on appeal).
However, Simon Tam — founder of The Slants who tweets at @SimonTheTam — argued that despite the popular usage of the phrase “slants” as a slur when referencing Asian Americans, the band name was intended to be a subversive reappropriation of an epithet as part of their larger project to “take ownership” of anti-Asian stereotypes.
As summarized in the majority opinion, The Slants argued:
The USPTO Board based their original decision on the presumption that the phrase “The Slants” would be viewed as offensive by a majority of Asian Americans. The Federal Circuit Court agreed with this, even though they also affirmed that it was not responsibility of the USPTO Board to actually demonstrate — through a market survey — any evidence that Asian Americans are actually offended.
In making this point, Tam argues that this law is disproportionately applied against minorities vs non-minority applicants, or unfairly exercised against some minorities over others, resulting in excessive vagueness in determining what is “too offensive” to register as a mark. Reuters notes that similar trademarks that seek to positively reclaim a word that might otherwise be viewed as an epithet have been successfully registered, such as the motorcycle club “Dykes on Bikes”.
A single judge — Judge Kimberly Moore — took the opportunity to call for reevaluation of the Lanaham Act. Writing for herself in a separate opinion, Judge Moore was moved by The Slants’ First Amendment argument contesting the USPTO’s role as “referee of political correctness“, although she ultimately decided against The Slants and agreed with the majority opinion on the status of their mark. Summarizing her position, Moore writes:
Tam reacted to the Federal Circuit Court’s decision with disappointment but resilience. Saying to Oregon Live:
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