The Slants: Fighting for the Right to Offend

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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Trademark / CopyrightAs I wrote about last year,  “The Slants” are a Portland-based “Chinatown Dance Rock” band. The band’s leader, Simon Tam, has been fighting for seven years for the right to obtain a federally registered trademark for the band’s name.

The problem is 15 U.S.C. § 1052(a) — a part of the Lanham Act that prohibits the registration of a mark that may:

disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…

The term “slants” is considered disparaging to people of Asian ancestry. Tam said he was trying to “reclaim” the term — to “empower Asian-Americans and subvert stereotypes.”

A song from the band’s latest album is called “The Band Who Must Not Be Named.”

“Dykes on Bikes”

Other “disparaging” trademarks have faced similar battles.

For example, as NPR notes, the motorcycle group “Dykes on Bikes” obtained federal trademark registration for its name but not for its logo. “Heeb” media obtained trademark registration for its Jewish-oriented hipster publication but not for a line of clothing.

As I wrote about here, the Washington Redskins football team filed an amicus (friend of the court) brief in Tam’s case. In 2014, the Trademark Trial and Appeal Board cancelled the registration of six Redskins-related marks on the grounds they were disparaging to Native Americans.

Groups including the American Civil Liberties Union have also backed Tam’s case.

Free Speech

In December of 2015, the Federal Circuit ruled as follows in Tam’s case:

We hold that the disparagement provision of § 2(a) is unconstitutional because it violates the First Amendment. We vacate the Board’s holding that Mr. Tam’s mark is unregistrable, and remand this case to the [Trademark Trial and Appeal] Board for further proceedings.

The court also struck down the part of the law that prohibited disparaging trademarks. 

As Rolling Stone reported, Judge Kimberly Moore wrote in her opinion,

Courts have been slow to appreciate the expressive power of trademarks. … Words — even a single word — can be powerful. Mr. Simon Tam named his band The Slants to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.

Now the case has gone all the way to the US Supreme Court.

As NPR reported, during oral arguments a representative of the US Patent and Trademark Office argued that Tam shouldn’t be allowed to register the “disparaging” band name.

Some advocacy groups agree with the Trademark Office.

“Vile Epithets”

Cecelia Chang, legal director of Asian Americans Advancing Justice (AAJC), wrote in an amicus brief that many people

support efforts to reclaim and re-appropriate derogatory terms, but believe that socially progressive reclamation movements are not an excuse to open federal trademark registration to vile epithets and hateful marks.

Standing on the steps of the high court after oral arguments, Tam told reporters:

If the government really truly cared about fighting racist messages they would have canceled the registrations for numerous white supremacist groups before they even approached our case.

The justices are expected to issue a ruling by June.

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