The Case of the Of­fen­sive Band Name

Can the govern­ment refuse a trade­mark be­cause it’s “scan­dalous”?

Reader's Digest - - Contents - VICKI GLEMBOCKI

Can the govern­ment refuse a trade­mark be­cause it’s “scan­dalous”?

WHEN SI­MON TAM started a band in Port­land, Ore­gon, in 2006, he thought he’d come up with the per­fect name—the Slants. Sure, it could be in­ter­preted as a racial slur against Asians, but that was pre­cisely the point. Tam and the rest of the band’s mem­bers are Asian Amer­i­cans who play what they call “Chi­na­town dance rock.” They used the slurs and mock­ing nurs­ery rhymes they’d heard as kids as inspiration for al­bums with ti­tles such as The Yel­low Al­bum and Slanted Eyes, Slanted Hearts. “We want to take on these stereo­types that peo­ple have about us, like the slanted eyes, and own them,” Tam ex­plained.

The in-your-face name and ti­tles didn’t seem to hurt the band’s suc­cess. Af­ter an 18-month tour of Asian Amer­i­can fes­ti­vals and

other events all over the coun­try,

Tam de­cided to trade­mark his group’s name. In Novem­ber 2011, he filed an ap­pli­ca­tion with the U.S. Patent and Trade­mark Of­fice to regis­ter “THE SLANTS” for “en­ter­tain­ment in the na­ture of live per­for­mances by a mu­si­cal band.” How­ever, the at­tor­ney as­signed to ex­am­ine Tam’s ap­pli­ca­tion re­fused to regis­ter the mark. He found it “dis­parag­ing to per­sons of Asian de­scent,” since its as­so­ci­a­tion with those of Asian de­scent

“is ev­i­denced by how the ap­pli­cant uses the Mark—as the name of an all Asian-amer­i­can band.” The at­tor­ney cited the dis­par­age­ment clause in the Lan­ham Act, en­acted in 1946, which bars the patent of­fice from fed­er­ally reg­is­ter­ing “scan­dalous, im­moral, or dis­parag­ing marks.”

Tam asked the of­fice to re­con­sider, ar­gu­ing that the real of­fense was that the of­fice re­fused to regis­ter the mark based on the band’s “eth­nic back­ground.” Had the band been white, would its ap­pli­ca­tion have been de­nied? In fact, years ear­lier the trade­mark of­fice had ap­proved a re­quest for the rap group N.W.A, which stands for “N—— Wit At­ti­tudes.” But the Trade­mark Trial and Ap­peal Board held firm against the Slants.

So Tam took his case to the United States Court of Ap­peals for the Fed­eral Cir­cuit. The patent of­fice ar­gued that it was “en­ti­tled to dis­so­ci­ate it­self from speech it finds odi­ous.” Tam claimed that such a po­si­tion, and the Lan­ham Act, which sup­ported it, vi­o­lated his right to free­dom of speech.

Does re­fus­ing to trade­mark The Slants as an Asian Amer­i­can band’s name vi­o­late its rights?

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