A straitlaced federal court on Monday rejected an Asian-American musician’s effort to trademark his band’s name, ‘The Slants.’
In a unanimous decision on the hot topic of disparaging names, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit turned down musician Simon Shiao Tam and upheld a Patent Trial and Appeal Board’s earlier rejection of the name.
“We find there is substantial evidence, even without a marketing survey or some other quantitative measure of the term’s offensiveness, supporting the Board’s finding that the mark is disparaging to a substantial composite of people of Asian descent,” Judge Kimberly Ann Moore wrote.
Under the Lanham Act, the Patent and Trademark Office may refuse to register a trademark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
Applying this standard, for instance, the U.S. Patent and Trademark Office last year canceled the Washington Redskins’ trademark.
The bass player and founder of the Portland, Ore.-based group, Tam first began trying to trademark the ‘The Slants’ name in 2010. The group’s albums have titles including “The Yellow Album” and “Slanted Eyes, Slanted Hearts.”
After an initial rejection, Tam brought back modified arguments, including the point that the word ‘slants’ has multiple meaning, not all of them disparaging.
“The fact that the term ‘slants’ has some innocuous meanings, and that some trademarks have issued with those innocuous meanings, does not foreclose the possibility that the term may also be used in an offensive manner, even when the non-disparaging meanings are more common,” Moore countered.
But in an intriguing addendum to her 11-page opinion, Moore also included 24 pages of “additional views” in which she called for reconsideration of the idea that trademark applications can be rejected on grounds of disparagement. The First Amendment, she says, may require the court to “revisit” this government agency’s speech-suppressing power.
“With their lyrics, performances, and band name, Mr. Tam and The Slants weigh in on cultural and political discussions about race and society that are within the heartland of speech protected by the First Amendment,” Moore wrote in her additional views.