Asian Band ‘The Slants’ Can’t Trademark Name

     (CN) – Because the band’s name disparages Asians, the Federal Circuit denied trademark protection to the Asian-American front man for The Slants.
     Simon Shiao Tam had applied with the U.S. Trademark Office to register the mark “The Slants,” which is the name of the Asian-American dance-rock band for which he is the front man.
     The application included images of the band name set against Asian motifs.
     Finding the mark disparaging to people of Asian descent, the examining attorney refused to register it.
     The Lanham Act provides that the trademark office may refuse to register a trademark the “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
     Claiming that he chose the band’s name in an effort to “own” the stereotype, Tam entered into evidence an article that describes the genesis of the band’s name. “I was trying to think of things that people associate with Asians,” Tam said, as quoted in that article. “Obviously, one of the first things people say is that we have slanted eyes…”
     He also said: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them. We’re very proud of being Asian – we’re not going to hide that fact.”
     The Asian American Youth Leadership Conference decided not to ask Tam to give its keynote address in 2009, however, because some people found his band’s name offensive and racist.
     A divided three-judge panel with the Federal Circuit affirmed the Trademark Office’s decision Monday, finding that “substantial evidence supports the Board’s finding that the mark ‘The Slants’ is likely offensive to a substantial composite of people of Asian descent.”
     It is quite clear from the word’s dictionary definition that the term is a slur sued for Asian people, and Tam’s statements support the finding that he chose the band name for this very reason, Judge Kimberly Moore wrote for the majority.
     Rejecting Tam’s First Amendment argument, the court relied on in In re McGinley, which found that the trademark office’s refusal to register a mark does not affect an applicant’s right to use it.
     Attaching 24 pages of “additional views,” Moore added that “it is time for this court to revisit McGinley‘s holding.”
     The Lanham Act allows the Trademark Office “to determine whether the trademark is suitable for registration, in this case whether it is disparaging, which is a moral judgment based solely and indisputably on the mark’s expressive content,” Moore said.
     And it is clear, the judge continued, that the lack of trademark protection punishes applicants rejected for this reason for their speech.
     “While the government may argue that it has an interest in discouraging the use of disparaging marks that may be offensive to persons, institutions, beliefs, or national symbols, this is not a legitimate government interest,” Moore said.
     This ruling is of particular interest given the pending appeal of the Trademark Office’s decision to cancel the Washington Redskins trademark as disparaging to Native Americans.

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