In a ruling handed down this morning, the US Supreme Court unanimously sided with Asian American rock band “The Slants” against the U.S. Patent and Trademark Office. The Slants had sought to register their band’s name as a trademark, but was denied the mark under guidelines outlined in the 1946 Lanham Act, which prohibits the registration of any mark that might be deemed offensive or disparaging.
The Slants took issue with the US Patent and Trademark Office’s ruling, saying that their band name was not offensive, and was instead an effort to reclaim a racial or ethnic slur to empower the Asian American community.
However, The Slants’ legal battle to challenge the Lanham Act’s disparagement clause is of particular political relevance, as the clause also represents a significant legal basis for the Native American community’s protest of the “Washington Redskins”‘ name and trademark.
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.
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?