The Case of the Offensive Band Name

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

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?