The Slants v. the USPTO

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Kat Chow, "Asian-American Band Fights To Trademark Name 'The Slants'", NPR codeswitch 10/20/2013:

The Slants, a six-member band from Portland, Ore., calls their sound "Chinatown Dance Rock" — a little bit New Order, a little bit Depeche Mode. They describe themselves as one of the first Asian-American rock bands. Their music caters to an Asian-American crowd, they've spoken at various Asian-American events, and they're proud of all of it.

But the Slants have been duking it out with the United States Patent and Trademark Office (PTO) over the past four years because of their name. The PTO refused the band's two trademark applications, saying that "slants" is a disparaging term for people of Asian descent. Now the band plans to take their case to a federal circuit court.

According to 15 USC § 1052,

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—

(a) 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; or [... etc ...]

It's this clause which led the USPTO to reject (but later accept) registration for the motorcycle club Dykes on Bikes, and to reject the application of Heeb Media.  And it's been the point of contention in the long legal battle over the name of the Washington Redskins.

According to Megan Carpenter and Kathryn Murray, "Calling Bullshit on the Lanham Act: The 2(a) Bar for Immoral, Scandalous, and Disparaging Marks", 49 U. Louisville L. Rev. 465 (2010-2011), previous rulings have "sought to determine whether the use of MADONNA on wine not limited to religious use would be shocking or give offense to the conscience or moral feelings of the consuming public", "held that the mark DOUGH-BOY for medication to treat sexually transmitted diseases 'obviously' disparaged American soldiers", and "[concluded] that a large red "X" atop a hammer and sickle was not registrable by the Anti-Communist World Freedom Congress, [because] 'there can be no question' that such mark disparaged the Communist Party." They also note that TECHNODYKE was accepted while SUPERDYKE was rejected; QUEER GEAR was accepted while CLEARLY QUEER was rejected; and so on.

The issues here strike me as similar to those involved in campus speech codes, where there are plausible moral and practical arguments on both sides. There's also a connection to recent arguments about the free speech rights of corporations in political contexts. And for discussion of a place where the law is much more intimately involved in controlling who can say what, see Geoff Pullum's recent post "Stupid police investigation of racist language".

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24 Comments »

  1. Graeme said,

    October 21, 2013 @ 8:00 am

    Not quite analogous to campus codes or anti-vilification laws in worldly effect. The Slants can continue to play, trade under that name. They just can't exclusively own a mark to brand that name on products; but not can anyone else. They are denied a commercial protection, but not subject to a legal disbenefit.

  2. J. W. Brewer said,

    October 21, 2013 @ 8:44 am

    Moreover, they presumably can enforce common-law trademark rights against anyone else who uses a confusingly similar name in the popular music field (or some commercially salient subfield); they just can't (unless their lawsuit gets them somewhere) get the additional advantages of federal registration. There are quite a few rock bands one could think of with controversial/scatological/arguably-offensive/etc. names that would be unlikely to find favor with the PTO if federal registration were sought, but I'm not aware of any notable incidents in which such a band was a victim of unfair competition by rival musicians playing under the same name. (More generally, my impression, which well could be erroneous or outdated, is that federal trademark registration is not SOP for most working rock bands.)

    This seems like either a publicity stunt or the result of a misplaced sense of priorities.

  3. J. W. Brewer said,

    October 21, 2013 @ 8:56 am

    FWIW, http://en.wikipedia.org/wiki/Versus_(band) is described as "perhaps the most prominent example of a wave of American indie bands emerging in the early 1990s which featured Asian American members." (As the article notes Versus took their seemingly-inoffensive name from the Mission of Burma album title "Vs.," which probably has something to do with why they were selected as the opening band for the show I went to on the first MoB reunion tour roughly a decade ago.)

  4. Simon Tam said,

    October 21, 2013 @ 9:04 am

    In regards to J.W. Brewer's comment, " they just can't (unless their lawsuit gets them somewhere) get the additional advantages of federal registration. There are quite a few rock bands one could think of with controversial/scatological/arguably-offensive/etc. names that would be unlikely to find favor with the PTO if federal registration were sought,"

    That isn't true. The Trademark Office made it clear that "slant" is an otherwise neutral term, it only became an issue when used by an Asian American. So any other band, as long as they were not Asian American could trademark the term – which is different than a name that is inherently controversial or offensive.

    "This seems like either a publicity stunt or the result of a misplaced sense of priorities."

    If you know a thing or two about law, then you'd know it would be crazy for someone to not only predict the actions of the government, but also pay the fees involved with that sort of thing. Obviously, no one wants to go through the headache of fighting in court for four long years.

  5. J. W. Brewer said,

    October 21, 2013 @ 12:26 pm

    I obviously can't comment on the legal advice Mr. Tam and his bandmates may have gotten at various steps along the way, but I accept that I should be open-minded to the possibility that the original trademark application may have been filed in the hope that it would be uncontroversially granted, rather than in the hope that it would be denied in a publicity-generating fashion. That said, maybe I am just old-fashioned, but the pursuit of federal trademark registration in the first place strikes me as a very non-rock-and-roll concern. Once upon a time bands occasionally had to defensively tweak their names to avoid being hassled by potential trademark claims by others (e.g., Dinosaur -> Dinosaur Jr.; Red Cross -> Redd Kross), but I really can't recall any concern about affirmative protection.

    "Slant" as a noun certainly has non-pejorative meanings as well as a pejorative meaning. http://en.wiktionary.org/wiki/slant lists some. It seems to me that reasonable people might differ as to whether a band (of any ethnic composition) with that name that has put out an album titled "Slanted Eyes, Slanted Hearts" is likely to be understood in context as evoking only or primarily the non-pejorative meanings. (I personally don't find the name of the album or the name of the band offensive, but I used to play records by the Butthole Surfers and the Circle Jerks over the airwaves back in my college radio years, so I'm probably not a good proxy for either the PTO or whatever hypothetically-offense-prone audience the PTO is trying to protect.)

    However, I'm not sure which way this cuts, but it just struck me that back in the day (going back to when I was in high school in the early '80's and for quite some time thereafter) one of the leading punk-rock clothing/etc. emporia in Philadelphia was Zipperhead on South Street. (It's name-checked in that one Dead Milkman song that got played on MTV a lot.) "Zipperhead" is or was apparently in some AmEng contexts an anti-Asian racial/ethnic epithet, but as best as I can recall that was not at all what the name evoked for the punk-fashion-conscious youth of the area 30 years ago. There was sort of a cool/outre sort of feel to the name, but not the additional transgressive frisson that goes with deliberately using a taboo/offensive lexical item.

  6. Mr Punch said,

    October 21, 2013 @ 2:15 pm

    As I recall, it was considered a deliberate instance of political incorrectness when Kinky Friedman billed his bassist Willie Fong-Young, from Arkansas, as "the Southern Slope."

    [(myl) But the USPTO has no record that he ever tried to register the name of his first band, "The Texas Jewboys".]

  7. Rubrick said,

    October 21, 2013 @ 4:39 pm

    I'm curious whether there is, anywhere in law, the equivalent of the generally-accepted comedic maxim "It's okay to do black/jewish/gay jokes if you're black/jewish/gay". Simon Tam's comment suggests that in this case someting like the *reverse* reasoning is being applied.

  8. Adrian said,

    October 21, 2013 @ 5:17 pm

    What Rubrick said. Simon's comment that "any other band, as long as they were not Asian American could trademark the term" strikes me as perverse.

  9. Jerry Friedman said,

    October 22, 2013 @ 12:08 am

    I imagine it's true, though. Maybe the only exception would be a non-Asian band that imitated or mocked stereotypes of Asians, analogously to the old blackface minstrels.

  10. maidhc said,

    October 22, 2013 @ 1:04 am

    There are quite a few bands working the oldies circuit where maybe only one member of the band was actually in the band during its hit-making days, and in many cases there are several bands working under the same name. I seem to remember The Drifters was one such example. And they do have trademark disputes, which often result in variations of the original name being used, along the lines of The New Drifters, Tre Original Drifters and so on (not real examples).

    In the old days it was common for the band's manager to own the name and on occasion to fire all the members and replace them.

    Federal trademarks only cover interstate trade. They could try applying for a state trademark and see where they get with that.

  11. Keith M Ellis said,

    October 22, 2013 @ 2:45 am

    "What Rubrick said. Simon's comment that 'any other band, as long as they were not Asian American could trademark the term' strikes me as perverse."

    I think his assertion is misleading, though. The reasoning involved is clearly not simply that the band being Asian American is necessary and sufficient, but rather any very evident context surrounding the band's name that leads to the particular meaning of "slant" that is a slur is necessary and sufficient (where there are multiple meanings, slur and non-slur). So, for example, a non-Asian American band whose style and affect is J-pop would run into the same trademark restriction (assuming the USPTO was aware of this context).

    So it really isn't the case that the law perversely only restricts members of the affected class from registering slurs where the word has numerous meanings, among them both non-slurs and slurs. It's just that a band composed of members of the affected class make it self-evident that the slur meaning is intended … and so, too, could other context do the same thing for a band composed of members who aren't members of the affected class.

  12. John said,

    October 22, 2013 @ 5:59 am

    I don't know if this site has covered it, but UK football team Tottenham Hotspur are currently fighting for the right to continue to (unofficially) call themselves "the Yids", and use the term in chants, banners etc. Tottenham used to be a highly Jewish area and fans were abused as such whether they were themselves Jewish or not, so they appropriated the term — raising the question of whether "N-Word Privileges" apply to non-Jewish Spurs fans.

  13. Fast N. Luce said,

    October 22, 2013 @ 8:02 am

    There used to be a Vietnamese restaurant in Montreal whose name was printed in French and English on opposite sides of an awning. The French side read, "Chez Les Bridées." The English side read, "Home of the Slant-Eyes."

  14. J. W. Brewer said,

    October 22, 2013 @ 10:08 am

    Apparently the punk-rock business has gotten more interested in federal trademark protection in recent years (sensibly or not I cannot say) than back when I was paying more active attention to things. (Damn kids; get off my lawn; etc.) For example, trademark registrations were obtained for both the Ramones and the Dead Boys within the last decade (long after both bands had broken up, and after some key original members were deceased) and, for good or for ill, the Circle Jerks (formed circa 79-80) actually successfully got a federal registration in 2007. The Butthole Surfers (formed '81, first recordings released '83) applied for registration in 1999, but abandoned the application the following year. Whether they hit an immoral/scandalous etc. issue that the Circle Jerks did not (or maybe the Circle Jerks got a different examiner who was either extremely hip or extremely naive?), I don't know.

  15. J. W. Brewer said,

    October 22, 2013 @ 10:11 am

    However, no registration has yet been sought by Millions of Dead Cops under the full name. There are quite a lot of "MDC" applications; the first two or three I checked were for businesses in unrelated lines of work but I haven't checked to see if any of them are the band with the disparaging content buried in the initialism.

  16. Elisabeth said,

    October 22, 2013 @ 2:45 pm

    @ J.W. Brewer – The use of "Zipperhead" as an anti-Asian epithet is new to me. In the military (at least, in the Canadian military) "Zipperhead" is the affectionate nickname for tank personnel. (It refers to the horizontal scar you get across the top of your forehead after banging it a few too many times on the entry hatch.)

  17. Jon Weinberg said,

    October 22, 2013 @ 5:00 pm

    "Dead Kennedys" — filed 2008; registered 2010 to East Bay Ray, Klaus Flouride, Jello Biafra, & D.H. Peligro.

  18. Michael W said,

    October 22, 2013 @ 6:00 pm

    'Zipperhead' was, so I'm told, used in Vietnam but may not have an explicitly racist origin. In popular culture it could have become more well-known from Full Metal Jacket (it also appears in "The Short-Timers", which the movie was based on and was written by a Vietnam vet). The Racial Slur Database suggests a variety of possibilities for a source, and says it likely arose during the Korean War or earlier (cf 'gook' – clearly derived from Korean, but also common in Vietnam). The Asian connection may then just be a result of fighting several wars in Asia.

  19. Jodi Heatherington said,

    October 22, 2013 @ 10:53 pm

    What about NWA?
    I first heard "zipperhead" used by Clint Eastwood in " Gran Torino" . There was some nearly astonishing dialogue in that movie, but I guess he forgot the one that means "leaning".
    Question: does The Urban Dictionary, cited by th USPTO, include the word slant in its rude references?

  20. Jeff said,

    October 22, 2013 @ 11:59 pm

    Well, if that's the case, I don't know how this one was accepted by the USPTO:

    "Japrag"
    "Japrag Denim – An independent French label based in Paris France and Los Angeles California designed by Japanese designer Okishana Samoki. Japrag brings a unique urban styling to denim like no other. With the use of denim-on-denim patchwork design patterns and slim-fit cuts, Samoki creates a visibly signature look to the Japrag line of denim." Source: http://www.chapandrogue.com/collections/japrag

    "Japrag" is trademarked in the US. Source:
    http://www.trademarkia.com/map/japrag-77901449.html

  21. J. W. Brewer said,

    October 23, 2013 @ 10:59 am

    There is a registered federal trademark for N.W.A. the musical ensemble (not to mention separate registrations in different lines of commerce for NWA the airline, NWA the pro wrestling outfit, etc etc etc), but only for the initialism which obscures the underlying potentially-taboo word. Like some of the other cases referenced above, it was obtained many years after the group's initial success, and indeed quite some time after the group broke up (although the application might have coincided with an ill-fated reunion attempt?). Various applications have been made for word marks including "nigga/niggas/niggaz," but none seem to have been thus far granted. However, some of those applications are still pending (coded LIVE rather than DEAD in the TESS database), so who knows what will happen.

  22. Jon Weinberg said,

    October 23, 2013 @ 1:56 pm

    I see that the PTO in 2008 granted a trademark for RedNeckPeckerwood, which is simultaneously an ethnic slur and vaguely sexually suggestive.

  23. Eric said,

    October 24, 2013 @ 2:19 am

    I don’t feel like looking this up now and it seems hard to google anyway, but I seem to recall an interview with Fuck wherein they stated that they would have legal protection if they had “fuck” in their name, but could not register an obscenity on its own. So I guess any other band could go around calling itself Fuck, as well.

  24. Simon Tam said,

    November 7, 2013 @ 11:55 pm

    Hi,

    I posted some experts from the expert report on the history behind the term "slant," http://aslantedview.tumblr.com/post/64651752263/excerpts-from-dr-ronald-butters-one-of-the-most

    If you'd like, I can also email you a copy of it (just shoot me a message at simontam@theslants.com).

    I think it's safe to say that the USPTO has been all over the place in terms of Section 2(a) rulings. Unlike many of the cases were oft-compared to (Redskins, NWA, etc.), slant has multiple definitions and is mostly used without any racial connotations. It's absurd to legislate what could be considered "offensive language" anyway, as it can not only change with time but with different community groups. The context can shift.

    The Trademark Office made it clear by telling us intention does not matter, only the context in which the mark is used. If our band is "too Asian" and makes people think of racial connotations, what if we were less Asian? What if I replaced the Asian members of my band for white band members and removed any Asian artwork? I wonder at what point it could be considered acceptable to them, as none of the 800 other applications for 'slant' have ever been cited for racism

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