Front man Simon Tam says he chose The Slants for his Portland, Ore., group to reappropriate an offensive stereotype about people of Asian descent. In that same vein, The Slants’ fourth release, "The Yellow Album," plays both on the famous Beatles record and stereotypes about Asian skin hue. Recalling a common taunt of schoolyard bullies, the chorus of one song notes, “We sing for the Japanese, and the Chinese and all the dirty knees.”
Tam applied for federal trademark registration for The Slants in 2011, but the Patent and Trademark Office denied his application based on a clause in the Lanham Act that says the government cannot register a trademark that "may disparage" a group of people.
At the surface, a ruling in favor of Tam could clear the path for other, similar marks receiving federal trademark recognition, most notably the Washington Redskins, which lost six trademarks in 2014 because the word "redskins" is disparaging to Native Americans. The Supreme Court is scheduled to hear oral arguments in the case Wednesday morning.
Some proponents of the current law warn this could mean a flood of offensive trademarks rushing out of the PTO.
"I think you're going to see a huge uptick in that kind of behavior," Roger Schechter of George Washington University said in an interview. The law professor is one of dozens who signed a November amicus brief supporting the government.
"And it's, at least in my personal opinion, not what we as a society need right this minute,” Schechter added.
U.S. Solicitor General Donald Verrilli petitioned the Supreme Court for certiorari after the en banc Federal Circuit ruled that the so-called disparagement clause unconstitutionally discriminates based on the viewpoint of the person applying for the trademark registration.
Verrilli noted that Tam does not need federal trademark recognition to use the name or even to take legal action if other groups call themselves something similar.
"Just as an artist denied federal arts funding could create as much excrement-smeared art as he wished without federal assistance ... a person who is unable to register an offensive racial slur with the PTO may continue to use that term, as an unregistered trademark or otherwise," the petition says.
Defending the rule as viewpoint-neutral, Verrilli noted that it does not matter what group a phrase disparages or whether the person filing for the trademark means to disparage it. Any message that could reasonably offend a group of people is not allowed to receive federal trademark recognition, which the government argues should insulate its case from the strict scrutiny the court applies to viewpoint-based discrimination.