WASHINGTON (CN) - Looking at the trouble an Asian-American band has had trying to trademark its cheeky name The Slants, a judge with the en banc Federal Circuit asked the government Friday where the persecution of names would end.
Could the government to prevent a doctor named Osama bin Ladin from getting a license simply because it did not like his name, Judge Kimberly Moore asked.
The hearing before the 12-judge court is the latest obstacle that a Portland, Ore.-based dance-rock band has faced while trying to protect its name.
Simon Tam calls the Slants the only Asian-American group of its kind. The front man and bassist said he coined the name in an attempt to "own" a stereotype against his community.
The Trademark and Patent Office determined the name disparaged people of Asian descent, however, and denied Lam a trademark under a section of the Lanham Act.
Though a divided three-judge panel with the Federal Circuit affirmed this past April, that decision has been vacated pending the en banc court's findings.
Archer Griener attorney Ronald Coleman and Lee Rowland of the American Civil Liberties Union told the court that the government has no business regulating this kind of speech.
"The government should not be in the moral or speech police business," Rowland said at the hearing.
For The Slants, the government's regulation is based on the viewpoint from which it read the phrase, rather than the content of the phrase itself.
The judges seemed to support the free-speech position as they asked the government's attorney why people who took offense to the band's name could not simply avoid their concerts.
"Where are we drawing the line as to the role of the government in these social-societal issues of speech?" Judge Pauline Newman asked.
Coleman bristled at the suggestion from Judge Todd Hughes that the protections a trademark provides constitute a government benefit.
Hughes said the same concept that supports the government in denying the Slants a trademark likewise allows it to pull federal benefits from clinics that provide abortions.
The government's attorney, Daniel Tenny, advanced this point by leaning on the 1991 Supreme Court decision in Rust v. Sullivan, which held Congress could withhold federal dollars from groups that provided abortion-related services.
Tenny said Tam would have all the protections afforded under copyright law, and that the band could still operate under its name, but that the government should not endorse a name some consider offensive.
The government attorney denied Judge Moore's implication that government has cast itself as the arbiter of what is offensive.
"The test that's been applied ... relates to the public's view of it and the government is a representative of the public," Tenny said.
Though The Slants can still use their band name without trademark protection, Coleman said such precedent could hurt similarly situated persons without Tam's resources.
"It's a chilling of speech," Coleman said. "It's not a ban on speech."
Copyright law may still protect Tam's band and their music, but Coleman claimed there is a "gigantic" difference between the protections a registered trademark affords and those an unregistered trademark provides.
"The loss is that the First Amendment will have been breached," Coleman said while responding to the more narrow question of how the trademark denial injured Tam.
After the hearing, Tam said he never expected the fight to bring him to Washington.
"Nobody starts a band, especially a band that is started to raise anti-racism awareness and expects to end up in court," Tam said in an interview.
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