Wednesday, January 7, 2015

The Slants and Disparaging Trademarks

The Slants are upset with the federal trademark office.

The Slants describe themselves as “the world's first and only all-Asian American dance rock band.” The group’s manager and bass player, Simon Tam, applied twice for a federal trademark registration for the term The Slants for services consisting of “entertainment in the nature of live performances by a musical band.” Each application was rejected by the trademark office because the PTO maintains that the term highly disparages people of Asian descent. A copy of the recent decision by the Trademark Trial and Appeal Board (TTAB), containing the Board's decision and procedural information about the trademark applications, is available here.

The group is not shy about references to Asian elements. The Slants’ 2007 debut album played on Asian physical features with the title “Slanted Eyes, Slanted Hearts.” The group’s newly released album is entitled “The Yellow Album.” According to the TTAB decision, the group’s website previously featured Asian influences:

And, advertising for the band’s upcoming Seattle concert features Asian influences:

Section 2(a) of the Lanham Act prohibits registration of a trademark that "consists of or includes matter which may disparage or bring into contempt or dispute persons, institutions, beliefs or national symbols." The trademark office employs a two-part test to determine whether a mark violates Section 2(a),
1. what is the likely meaning of the term, and
2. if the meaning of the term refers to identifiable persons, institutions, beliefs or national symbols, whether the meaning may be disparaging to a "substantial composite of the reference group." 
The TTAB agreed with the trademark examiner's conclusion that the term The Slants, as used by the applicant, likely incorporates a highly disparaging reference to peoples of Asian descent, and that a "substantial composite" of Asians finds the term to be disparaging. The trademark examiner submitted evidence from dictionary definitions and common published references supporting the contention that the term is disparaging. 

The band pointed out that the word SLANT can have a non-disparaging meaning, and that the term had, in fact, been registered as a trademark for other uses, including as a mark for skateboards, water skis, surf skies, skies and snow boards, separately registered for motion picture film productions, production of radio or television programs, and two marks for serving ware for serving food.

But the TTAB noted that context is important. Here, the band uses the term in conjunction with Asian references. This is not the case with the other SLANT trademark registrations. The TTAB emphasized that the term incorporates a disparaging meaning as used by the band, and that the meaning is deemed disparaging by a substantial composite of Asians. Among the evidence in the record (cited in the TTAB decision) is the following statement from the Japanese American Citizens League:
"'Jap' is a derogatory term! ... And, so are terms link 'chink' ... and 'slant.'" Japanese American Citizens League Anti-Hate Program [sic] "The Japanese American Citizens League is a national organization whose mission is to secure and maintain the civil rights of Japanese Americans and all others who are victimized by injustice and bigotry."
More information about the Japanese American Citizens League can be found here.

The band has appealed the refusal to register The Slants to the Federal Circuit. Oral argument is scheduled for this Friday morning, January, 9, 2015, in Courtroom 201 in Washington, DC. Recordings of the oral argument can be obtained following argument at the court's website, here.

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