The Super Bowl and Coachella of Trademark Law
The Slants are a self-described “Chinatown dance rock” band who are well-known for their music, but have become famous for their battle over their name. The Slants, via its founder, Simon Tam, filed for a registration of its trademark with the United States Patent and Trademark Office (USPTO), but were denied because the USPTO deemed the name to be disparaging and therefore ineligible for registration. Section 2(a) of the Lanham Act bars registration of marks that “may disparage…persons, living or dead, institutions, beliefs, or national symbols.”
Tam admits that the name, in part, is derived from a stereotype used to describe the shape of Asian eyes and was chosen in an effort to reclaim Asian stereotypes and foster pride in the Asian cultural heritage. In an interview with Time, Tam also stated, “(I)t’s a play on words. We can share our personal experiences about what it’s like being people of color—our own slant on life, if you will. It’s also a musical reference. There are slant guitar chords that we use in our music.”
The USPTO, however, doesn’t see it that way. The government argued that it ought to be able to deny registrations for trademarks that it disapproves of in order to “disassociate itself from speech it finds odious.”
In December of 2015, the Court of Appeals for the Federal Circuit held that the disparagement provision of the Lanham Act was unconstitutional, stating that “the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others.” In what may be the event of the decade for trademark nerds like the author of this article, the tension between the First Amendment and the Lanham Act will soon be addressed by the U.S. Supreme Court. This case could prove to be a boon not only for The Slants, but also for the Washington Redskins, who are currently engaged in their own 2(a) war, the last battle of which resulted in the cancellation of their registration. A favorable Supreme Court ruling for The Slants could have a major impact on the fate of the Redskins’ trademark. However, the band is quick to correct anyone who claims that they support the Redskins’ claims by arguing that “slant” is not inherently offensive, while other terms, such as “redskin,” are.
So, what does this mean for the rest of us? Well, perhaps not much if your mark isn’t close to (or well over) the line of impropriety. But, if it is, you might find that your mark may be eligible for registration after all.
While we wait for the Supreme Court’s decision, you can listen to The Slants here.