Federal Court of Appeals Rules Denial of “Slants” Trademark is Unconstitutional

Asian American rock band, The Slants.
Asian American rock band, The Slants.

For the last several years, Asian American rock band, “The Slants”, has been in a knockdown fight with the US Patent and Trademarks Office (USPTO) over their band’s name.

The fight stems from a decision made by the USPTO to refuse registration of “The Slants” as a trademark on the grounds that the bands’ name is racially offensive to Asian Americans. The USPTO was empowered to make their decision based on the 1946 Lanaham Act, which prohibits the registration of any mark 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.”

In practice, the USPTO frequently makes such decisions unilaterally through the determination of a single case officer who by happenstance receives an application to register a questionable mark. Consequently, the USPTO has been notoriously inconsistent in their determination of a mark’s “immoral”, “scandalous” or “disparaging” content. “The Slants” is a group of Asian American musicians seeking to reclaim an offensive word they recognize as traditionally a slur; despite the USPTO’s refusal of their application, the Office has permitted the registration of “Dykes on Bikes”, which is a group named under similar reasoning.

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AAPI Civil Rights Groups File Amicus Brief Opposing Asian American Band “The Slants”

Asian American rock band, The Slants.
Asian American rock band, The Slants.

It’s Asian vs. Asian, once again.

Earlier this year, I profiled the Oregon-based Asian American rock band, “The Slants“, whose fight to trademark their name had gone all the way to the Federal Circuit Court of Appeals. According to their website, The Slants has been making music together since their 2007 debut album “Slanted Eyes, Slanted Hearts“.

Recently, however, The Slants have found themselves embroiled in a legal battle with the US Patent and Trademarks Office (USPTO), which denied them registration for the trademark of their band name on the grounds that it is derogatory towards Asian Americans. The 1946 Lanham Act prohibits registered trademarks from “consisting of or comprising 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.”

It is on this basis that opponents of the Washington Redskins and other racist sports mascots have demanded that the NFL #ChangeTheName. And indeed, when the federal government allows an entity to register a racist, sexist, or otherwise derogatory trademark, they in so doing condone the language by granting it institutional recognition and legal protection.

But, should all uses of all historically derogatory slurs simply become — in essence — blacklisted — prohibited regardless of context?

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Federal Circuit Court: “The Slants” Cannot Trademark Band Name

Asian American rock band, The Slants.
Asian American rock band, The Slants.

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.

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