The Slants Move Trademark Case To US Federal Court
Portland, Oregon-based Asian American dance-rock band The Slants has been fighting the United States Patent and Trademark Office (USPTO) for nearly four years over the right to to trademark their name. The USPTO previously refused the band’s application on the grounds that the term is disparaging to persons of Asian descent. The application process began in 2009, with appeals from the band including numerous articles by Asian American media sources, letters of support from Asian American activists, an expert report by noted linguistics scholar Dr. Ron Butters, several independent national surveys, and a case file totaling over 2,000 pages of evidence. The USPTO stood by its rejection, however, citing urbandictionary.com for evidence and citing the ethnic background of applicant/band manager, Simon Tam.
In 2011, The Slants filed a new trademark application with no “Asian-related” content, but was again rejecting on the ground of disparagement, even though no new evidence of supposedly disparaging use of the trademark was cited by the Trademark Office, which essentially cut and paste its earlier rejection.
Ronald Coleman of Goetz Fitzpatrick LLP, the law firm representing The Slants and a leading commentator on trademark law, says “As it stands now, therefore, there is nothing our client can do, or not do, if he wants to register the SLANTS trademark. The Trademark Trials and Appeals Board says he personally supplies, the offensive “context” to what is an otherwise plain English word just by being too Asian.”
According to U.S Trademark Office records, over 760 applications have been received for some variation on the term “slant.” However, “The Slants” is the only one in U.S. history that was denied based on an accusation that it was disparaging to persons of Asian descent – even though the band’s most recent application made no reference to Asian heritage at all. In its papers, the Trademark Office admits that, unlike most ethnic terms, the term is not inherently offensive, which is why it hasn’t been a problem in the past. Yet, Trademark Office attributed it to the band because “it is uncontested that applicant is a founding member of a band…composed of members of Asian descent…thus, the association.”
The Trademark Office justified making its decision based on Tam’s race, saying “we are faced with a term that necessarily identifies people, i.e., the live performers. Thus, those who attend the live performances will necessarily understand THE SLANTS to refer to the persons who comprise the musical band.”
Simon Tam, The Slants bassist commented on the issue:
“Their reasoning had nothing to do with our intentions or whether or not Asian Americans were actually being disparaged. Their only justification for applying an accusation of disparagement on our case but no other applicant was based on my race. In fact, the implication is that if we weren’t Asian, there wouldn’t be any problems because people wouldn’t associate our name with an obscure racial slur. And while it’s true that the people in the band can be identified by a band’s name, it doesn’t necessarily mean that the members literally embody the name of the band. No one thinks ‘The Rolling Stones’ are literal masses of undulating rock or that ‘Led Zeppelin’ is a metallic reincarnation of the Hindenburg blimp.”
The law states that a “substantial composite of the referenced group must find it disparaging.” Despite this requirement, the Trademark Office failed to cite any Asian American individuals or organizations that were actually deeply offended by the name, relying only on a media report of an incident in 2009 where an invitation for The Slants to perform at the Asian American Youth Leadership Conference was cancelled. In fact, those very event organizers wrote a letter to the Trademark Office, clarifying that the reason for the withdrawn invitation was due to lyrical content and logistical procedures, not the band name itself. The event still published the “The Slants” on the event website as well as their program, and received no complaints at all.
In fact, the band has had a history of constructive involvement with the Asian American community. In addition to performing at anime conventions and Asian American festivals throughout North America, the band regularly lead workshops on social justice and antiracism. They are often featured by some of the most influential voices in the Asian and Asian American communities, including Angry Asian Man, the Asian Reporter, the Asian American Legal Defense and Education Fund, and many more. Furthermore, they’ve led numerous fundraisers for charitable causes, including helping raise over $34,000 for the Japan Red Cross weeks after the Fukushima disaster.
Despite the band’s longstanding history and involvement with the Asian American community, the Trademark Office continued to deny The Slants’ application, using wiki-sources, anonymous websites and obscure reference books to support its decision.
Rev. Joseph Santos-Lyons, an Executive Director for the Asian Pacific Network of Oregon and longtime policy advocate for the API community, states that “the use of the name The Slants by the musical group of that name does not disparage or offend the Asian and Pacific Islander community, both because of the explicit claiming of the term in a collective sense and because of the obscure nature of the term as a racial epithet. The reclaiming of an obscure term that has been used to discriminate has a constructive impact when used by a group that also self-identifies as Asian and/or Pacific Islander.”
After an appeal to the Trademark Trials and Appeals Board, the Trademark Office’s rulings were upheld. Attorney Coleman explains, “We are planning an appeal to the Federal Circuit, and in anticipation of this result we have already lined up a number of civil rights groups who expressed great interest in filing amicus briefs if it came to that.”
“I’m glad to be moving away from the bureaucracy of the Trademark Office,” says Tam. “I hope that the federal court can take an objective view of our case, not only in light of the work we’ve done in the Asian American community, but on the merits of free speech as well. Whether one finds our band name agreeable or not, I think we can all come to the consensus on the fact that nobody should be denied rights simply because of their race.”
The band is currently seeking help from individuals and organizations who would like to assist.