Asian-American group battles ‘The Slants’ brand name: Code change: NPR
The Slants, a six-member band from Portland, Oregon, call their sound “Chinatown Dance Rock” – a little New Order, a little Depeche Mode. They describe themselves as one of the premier Asian-American rock groups. Their music is aimed at an Asian American audience, they have spoken at various Asian American events and they are proud of it all.
But the Slants have fought with the United States Patent and Trademark Office (PTO) for the past four years because of their name. The PTO denied both of the group’s trademark applications, saying “slants” is a derogatory term for people of Asian descent. Now the group is considering taking their case to federal circuit court.
Courtesy of The Slants
“They said that because of our ethnicity, people automatically think of racial insult as opposed to any other definition of the term,” Simon Tam, founder and bassist of The Slants told me. “In other words, if I were white it wouldn’t be a problem at all,” Tam, who calls himself “Simon Young” on stage, is of Taiwanese and Chinese descent. (The entire Slants crew is of Asian-American descent.)
(We contacted the attorney for the patent office; a spokesperson for the trademark office said he could not comment on the pending cases.)
Claim a word
This is not the first time that groups have fought over brand names that were overtly derogatory to them. The PTO rejected a request from a San Francisco biker group called “Dykes on Bikes”, saying their name was “derogatory to lesbians.” But the federal patent office overturned that decision in 2005. (Three years later, the United States Court of Appeals rejected a “human rights” advocate’s argument that “Dykes on Bikes Denigrated the men.)
Likewise, Heeb Media’s trademark application was denied in 2009 because its name, a variation of the insult “hebe”, was considered offensive to Jews.
The most controversial trademark abuse case today involves the Washington Redskins. But it differs from the Slants’ case on one key point: Native American activists are asking the PTO, arguing that the football team’s mark should be revoked because it is offensive to Native Americans. (For more on Trademarks and Insults – there’s some fascinating stuff here – read this.)
Under Section 2 (a) of the Lanham Act, the Trademark Act prohibits the registration of “scandalous” or “immoral” trademarks. The PTO uses a two-pronged test (which actually stems from one of the early battles of Redskins marks) to see if a mark is disparaging: “first, what is the likely meaning of the mark; and second, if that meaning refers to an identifiable group, is the meaning derogatory to a “substantial compound” of that group? “
Some say the law, which was enacted in 1946, does not always take intention into account. Mark Lemley, professor of intellectual property law at Stanford Law School and director of the law, science and technology program at Stanford, says it’s ironic that this part of trademark law affects people – especially minorities – who are trying to recover a sentence.
“I don’t think anyone who wrote the law in 1946 had the idea that minority groups would claim these terms as a badge of honor and re-use them,” Lemley said.
How the arguments unfolded
But let’s take a step back.
When the group members said they were calling for the term in 2009, the case was turned down by the patent office, which said the name was derogatory. (Officials cited Internet sources including Urban Dictionary and Wikipedia in their explanation.) Tam and his team also argued that “tilting” has many meanings and is not necessarily derogatory in all contexts. . The Slants claimed that their name is a reference to musical chords. As part of their defense, they asked two professors to question Asian Americans across the country about the potential offensive – or lack thereof – of the name, and they also asked the Duke linguist Ronald Butters writing a report analyzing the word.
But no dice. “An applicant’s intention to disparage the referenced group is not necessary to find that the mark in fact disparages that group,” the trademark office ruled on the original 2009 trademark application. Here’s how Tam said he and the group responded:
“The term ’tilt’ means a lot of different things. And [the lawyer from the PTO] even recognized that, then [we asked], ‘Why did you choose to apply racial overtones to this app, but you have never done it before in all of the history of this country? Why this case? ‘ And they said it was because I was Asian American. “
So the Slants filed a second trademark dossier in 2011, but they changed tack: this time they argued that the name had nothing to do with anything Asian.
But that too could be a tough sell, according to Lemley. “Trademark law cares a lot about what consumers think, and therefore whether how people in the market are likely to understand the term [is] as a reference to Asians, then that’s how trademark law will treat it, “Lemley said.” It may actually have another meaning, but if people don’t recognize that meaning, it doesn’t. not important. “
Courtesy of the Slants
As the Slants prepare to take their case to federal circuit court, they try a different strategy: They argue that denying them the mark violates their First Amendment rights.
Parties litigating in trademark cases cannot invoke freedom of expression; the PTO doesn’t say the Slants can’t be called that – they just can’t have the brand name. But they hope the Federal Court sees it differently.
“It will be slightly different in federal court than in trademark, because we can make some of the… other kinds of legal arguments that the USPTO doesn’t consider,” Tam said. “Such as [the] First Amendment and … their reasoning using breed as a consideration for the decision made by the Trademark Office … Under almost all others [form of] government, they can’t do that because it’s considered racist. “
This strategy might not be such a bad idea, according to Lemley, a professor of intellectual property law at Stanford.
“If the group sued the government and said, ‘You wrongly denied me that advantage over the content of my speech,’ I think they would have a pretty good record,” Lemley said.
The Slants have been trying to brand their name for almost a long time since they’ve been around. You could say the fight got them as much attention, if not more, than their songs.
“[The name is] definitely part of our band’s identity and part of our music, ”Tam said. “By their very nature they regulate something like that in the market, it hurts our ability to protect our group. “