The Slants, a six-member band from Portland, Ore., calls their sound “Chinatown Dance Rock” — a little bit New Order, a little bit Depeche Mode. They describe themselves as one of the first Asian-American rock bands. Their music caters to an Asian-American crowd, they’ve spoken at various Asian-American events, and they’re proud of all of it.
But the Slants have been duking it out with the United States Patent and Trademark Office (PTO) over the past four years because of their name. The PTO refused the band’s two trademark applications, saying that “slants” is a disparaging term for people of Asian descent. Now the band plans to take their case to a federal circuit court.
“They said because of our ethnicity, people automatically think of the racial slur as opposed to any other definition of the term,” Simon Tam, founder and bassist of The Slants, told me. “In other words, if I was white, this wouldn’t be an issue at all,” Tam, who goes by “Simon Young” onstage, is of Taiwanese and Chinese descent. (The entire Slants crew is Asian-American.)
(We reached out to the lawyer at the patent office; a spokesperson for the trademark office said he couldn’t comment on pending cases.)
Reclaiming A Word
This isn’t the first time groups have fought to trademark names that were ostensibly pejorative against them. The PTO rejected an application from a San Francisco motorcycle group called “Dykes on Bikes,” saying its name was “disparaging to lesbians.” But the federal patent office overturned that decision in 2005. (Three years later, the U.S. Court of Appeals rejected a “men’s rights” advocate’s argument that “Dykes on Bikes” was disparaging to men.)
Similarly, Heeb Media’s trademark application was refused in 2009 because its name, a variation of the slur “hebe,” was considered offensive to Jews.
The most contentious case about trademarking slurs these days involves the Washington Redskins. But it differs from the Slants’ case in a key way: Native American activists are petitioning the PTO, arguing that the football team’s trademark should be revoked because it’s offensive to Native Americans. (For more on trademarks and slurs — there’s some fascinating stuff here — give this a read.)
Under section 2(a) of the Lanham Act, trademark law prohibits registration of marks that are “scandalous” or “immoral.” The PTO uses a two-prong test (that actually stems from one of the earlier Redskins trademark battles) 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 disparaging to a ‘substantial composite’ of that group?”
Some say that the law, which was enacted in 1946, doesn’t always account for intent. Mark Lemley, a professor of intellectual property law at Stanford Law School and director of Stanford’s Law, Science & Technology program, says it’s ironic if that bit of trademark law affects people — especially minorities — who are trying to reclaim a phrase.
“I don’t think anybody who wrote the act in 1946 had the idea that minority groups would be claiming these terms as a badge of honor and repurposing them,” Lemley said.
How The Arguments Went Down
But let’s backtrack a bit.
When the band members said they were reclaiming the term in 2009, the case was refused by the patent office, which said the name was disparaging. (The officials cited internet sources, including Urban Dictionary and Wikipedia in their explanation.) Tam and his crew also argued that “slant” has many meanings, and that it’s not necessarily derogatory in every context. The Slants have claimed that their name is a reference to musical chords. As part of their defense, they had two professors survey Asian-Americans around the country about the potential offensiveness — or lack thereof — of the name, and they also had Duke linguist Ronald Butters pen a report analyzing the word.
But no dice. “The intent of an applicant to disparage the referenced group is not necessary to find that the mark does, in fact, disparage that group,” the trademark office ruled of the initial trademark application from 2009. Here’s how Tam said he and the band responded:
“The term ‘slant’ means a lot of different things. And [the lawyer from the PTO] even acknowledged that, so [we asked], ‘Why did you choose to apply the racial connotations to this application, but you’ve never done that before in the entire history of this country? Why this case?’ And they said it was because I was Asian-American.”
So the Slants filed a second trademark case in 2011, but they changed tacks: 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 so if the way people in the marketplace are likely to understand the term [is] as a reference to Asians, then that’s the way trademark law will treat it,” Lemley said. “It may actually have another meaning, but if people don’t recognize that meaning, it doesn’t matter.”
As the Slants prepare to take their case to a federal circuit court, they’re trying a different strategy: they’re arguing that denying them the copyright violates their First Amendment rights.
Parties arguing in trademark cases can’t invoke freedom of speech; the PTO isn’t saying the Slants can’t call themselves that — they just can’t have the name trademarked. But they hope the federal court sees things differently.
“It’ll be slightly different in a federal court than in the trademark because we can bring some of the… other types of legal arguments that the USPTO doesn’t consider,” Tam said. “Such as [the] First Amendment and… their reasoning using race as a consideration for the decision under the trademark office…. Under almost every other [form of] government, they can’t do that because it’s considered racist.”
That strategy might not be such a bad idea, Lemley, the Stanford intellectual property law professor.
“Were the band to sue the government and say, ‘You’ve improperly denied me this benefit on the content of my speech,’ I think they’d have a pretty good case,” Lemley said.
The Slants have been trying to trademark their name for nearly long as they’ve been around. You could argue that the fight has brought them as much attention — if not more — than their songs.
“[The name is] certainly a part of our group’s identity and part of our music,” Tam said. “By the very nature of them regulating something like this in the marketplace, it hurts our ability to protect our band.”