The Slants
For musician Simon Tam, the journey from the stage to the Supreme Court has been a long one – six years and counting. But on January 18, 2017, Tam’s lawyers stood in front of eight non-Asian justices to argue in favor of his band’s name, The Slants, receiving trademark protection under U.S. law. It could be considered ironic, or perhaps historic, that the opposing party in Lee v. Tam was represented by Michelle Lee, the first Asian-American director of the United States Patent and Trademark Office. Lee herself, however, did not argue the case in front of the Supreme Court – and as of June 19, 2017, the decision on this case will have much larger implications than for just Asian-Americans or rock bands.
Dance-rock band The Slants was formed by Tam in 2006, comprising four Asian-American men in Portland, Oregon. By 2009, the band was doing well enough to take themselves more seriously. So they hired a lawyer and filed a trademark application in early 2010 for their band name. Only a few months later, they found out it had been rejected. So they tried again in 2011, and again were denied in 2013. Tam appealed, but a panel of three judges on the U.S. Court of Appeals for the Federal Circuit agreed that the trademark should be refused. Only the full appellate court found that the trademark office’s choice violated the First Amendment. And now the Supreme Court has made a final decision on the case - in their favor! But why all the fuss?
According to the Lanham Act of 1946, the Disparagement Clause in Section 2(a) states that no trademark shall be refused registration, unless it “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.” The trademark office claimed that Tam’s band name would be disparaging towards “persons of Asian descent.” When Tam found this out, he wondered, “...do they know we’re of Asian descent?”
Dance-rock band The Slants was formed by Tam in 2006, comprising four Asian-American men in Portland, Oregon. By 2009, the band was doing well enough to take themselves more seriously. So they hired a lawyer and filed a trademark application in early 2010 for their band name. Only a few months later, they found out it had been rejected. So they tried again in 2011, and again were denied in 2013. Tam appealed, but a panel of three judges on the U.S. Court of Appeals for the Federal Circuit agreed that the trademark should be refused. Only the full appellate court found that the trademark office’s choice violated the First Amendment. And now the Supreme Court has made a final decision on the case - in their favor! But why all the fuss?
According to the Lanham Act of 1946, the Disparagement Clause in Section 2(a) states that no trademark shall be refused registration, unless it “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.” The trademark office claimed that Tam’s band name would be disparaging towards “persons of Asian descent.” When Tam found this out, he wondered, “...do they know we’re of Asian descent?”
Tam specifically chose the band name The Slants to address Asian stereotypes, and take back the term through community engagement and activism. Yet the U.S. Trademark Office didn't see it that way, in light of the Disparagement Clause. The government wanted to be able to control what receives trademark registration because registration is not required to simply choose or use the name of a product or group, and trademark registration is regulated by the government. And therefore, it could be representative of government.
But who is the government to decide what is “disparaging?” Who in government is making these decisions, and what sources are they consulting? What about the fact that words change in meaning and societal use over time? Doesn’t this unfairly burden minority groups, who want to reclaim derogatory terms for their own use? It all seemed too vague.
According to Justice Sonia Sotomayor, The Slants were asking the government to endorse their name with government speech, while they are otherwise free to use it under the First Amendment without a registered trademark. But does that mean that every product or company with a registered trademark is endorsed by the U.S. government? Is Pepsi? Kleenex? Google?
A registered trademark also holds more weight in legal disputes. It’s not required, but for businesses, it’s recommended. So while Tam was free to use “The Slants” in whatever form he chose without registration, if any other group or company wanted to use the name, Tam would fight a more difficult battle to retain sole rights of use. And as he points out, not registering it, “doesn’t stop hate speech from occurring.”
Perhaps the Disparagement Clause could have remained if there was a black and white definition in every situation of what actually is “disparaging.” For the government employees who saw The Slants as such, however, they consulted Urbandictionary.com, a photo of Miley Cyrus, and Toby Keith. Not the Asian-American community. They consulted the internet. And on the internet, everything is offensive to someone.
Justice Kagan may have said it best, when she pointed out that government programs are, “subject to one extremely important constraint, which is that they can't make distinctions based on viewpoint.” By keeping the trademark language positive, it does not make the government a better entity, it simply allows it to make viewpoint-based decisions.
So the fact the trademark office found “The Slants” to be disparaging is the very reason why the Disparagement Clause is unconstitutional. Band names especially are chosen to represent the style of music they create and who they are as people, but most all registerable marks are forms of expression – and protected under the First Amendment. When rejecting registration for those who choose unpopular or non-positive names, the government is imposing on the expression of those individuals or groups.
The simple side of the situation is that the government does not want to condone or promote slurs - even after this ruling. It wanted to legally censor itself. But considering the legal benefits of trademark registration, the government was doing something worse than keeping its language clean when denying registration to The Slants.
Trademark registration also isn’t even taxpayer-funded, it’s user-funded. So by considering this registered trademark list a form of private government speech and exempting it from the First Amendment, it was denying constitutional rights to such speakers and promoting a chilling effect in the creative economy.
I thought this might be a close decision, as some of the justices had said they were uncomfortable with a ruling that would “require the government to accept and endorse messages that demean people.” But they ruled 8-0, all in favor. The result now might also be that the NFL Redskins are allowed to regain their trademark registration, despite its demeaning nature.
If only trademark registration could be approved on the basis of merit, and not the message, might there be a happy compromise. As Justice Ginsburg inquired: “Does it not count at all that everyone knows that The Slants is using this term not at all to disparage, but simply to describe? … It takes the sting out of the word.” Reclaiming disparaging terms is a radical and powerful way for minority groups to take control of their image and portrayal in society. And as Tam commented, “It’s an effective way to create social change, especially in the arts.”
You can hear more from The Slants themselves, who were featured on The Daily Show after the ruling came out last month (below).
But who is the government to decide what is “disparaging?” Who in government is making these decisions, and what sources are they consulting? What about the fact that words change in meaning and societal use over time? Doesn’t this unfairly burden minority groups, who want to reclaim derogatory terms for their own use? It all seemed too vague.
According to Justice Sonia Sotomayor, The Slants were asking the government to endorse their name with government speech, while they are otherwise free to use it under the First Amendment without a registered trademark. But does that mean that every product or company with a registered trademark is endorsed by the U.S. government? Is Pepsi? Kleenex? Google?
A registered trademark also holds more weight in legal disputes. It’s not required, but for businesses, it’s recommended. So while Tam was free to use “The Slants” in whatever form he chose without registration, if any other group or company wanted to use the name, Tam would fight a more difficult battle to retain sole rights of use. And as he points out, not registering it, “doesn’t stop hate speech from occurring.”
Perhaps the Disparagement Clause could have remained if there was a black and white definition in every situation of what actually is “disparaging.” For the government employees who saw The Slants as such, however, they consulted Urbandictionary.com, a photo of Miley Cyrus, and Toby Keith. Not the Asian-American community. They consulted the internet. And on the internet, everything is offensive to someone.
Justice Kagan may have said it best, when she pointed out that government programs are, “subject to one extremely important constraint, which is that they can't make distinctions based on viewpoint.” By keeping the trademark language positive, it does not make the government a better entity, it simply allows it to make viewpoint-based decisions.
So the fact the trademark office found “The Slants” to be disparaging is the very reason why the Disparagement Clause is unconstitutional. Band names especially are chosen to represent the style of music they create and who they are as people, but most all registerable marks are forms of expression – and protected under the First Amendment. When rejecting registration for those who choose unpopular or non-positive names, the government is imposing on the expression of those individuals or groups.
The simple side of the situation is that the government does not want to condone or promote slurs - even after this ruling. It wanted to legally censor itself. But considering the legal benefits of trademark registration, the government was doing something worse than keeping its language clean when denying registration to The Slants.
Trademark registration also isn’t even taxpayer-funded, it’s user-funded. So by considering this registered trademark list a form of private government speech and exempting it from the First Amendment, it was denying constitutional rights to such speakers and promoting a chilling effect in the creative economy.
I thought this might be a close decision, as some of the justices had said they were uncomfortable with a ruling that would “require the government to accept and endorse messages that demean people.” But they ruled 8-0, all in favor. The result now might also be that the NFL Redskins are allowed to regain their trademark registration, despite its demeaning nature.
If only trademark registration could be approved on the basis of merit, and not the message, might there be a happy compromise. As Justice Ginsburg inquired: “Does it not count at all that everyone knows that The Slants is using this term not at all to disparage, but simply to describe? … It takes the sting out of the word.” Reclaiming disparaging terms is a radical and powerful way for minority groups to take control of their image and portrayal in society. And as Tam commented, “It’s an effective way to create social change, especially in the arts.”
You can hear more from The Slants themselves, who were featured on The Daily Show after the ruling came out last month (below).
This all got me thinking. A lot. I researched this case for a class this spring, and predicted that The Slants would win. But what I was wondering then - and still wonder now - is what this will mean for minority groups, the music industry, and pretty much anyone or thing looking to get a registered trademark. Does this mean that anyone can now register ...anything?
Probably not. It's still a complicated process, you don't just fill out a form online. But that doesn't mean that the NFL Redskins won't try to get their registration back. And that other bands or groups won't make poor choices in choosing names. The Slants, in that regard, however, are another fantastic example of how to step up in their industry.
In choosing and upholding their name, The Slants have used it to: reclaim a term about Asians like themselves
by raising awareness of its derogatory association and racism surrounding it, do good work in Asian communities, and let listeners know what they're getting into by matching it to their tone and style of music.
In contrast, Canadian post-punk band Preoccupations is a great example of how not to choose your band name. Formerly known as Women, and then as Viet Cong, these four white dudes thought it would be a good idea to name their band after things that have absolutely nothing to do with them or their music. Then their fans thought people were getting too offended when they toured through cities with large Vietnamese populations - while named Viet Cong - and those populations protested the band's name. Dude, bad choices all around. You had that coming. And while it doesn't seem to have hurt the band's success at all, at least they did eventually change it.
When they came through Minneapolis, still as Viet Cong, I got in a Facebook comment war with a man who just could not see any other point of view than his own, using the excuse that so many other bands have used offensive band names, it's not like it's new or anything. Yeah, well just cause something has happened historically doesn't make it "right," or any less offensive or inappropriate. People and societies evolve, we progress. And just doing something for the sake of being provocative, or the simple fact it sounded cool or edgy are not quite up to snuff when you get serious in your line of work, I don't care who you are. And being just plain ignorant doesn't cut it either.
What The Slants are doing, and the publicity and precedent they've gained with this court case, is a great start to this kind of conversation. Having a positive and proactive example that wins in the legal system is a much needed step forward. But what I wish would start happening is that the people who are the part of the problem - usually white men or white male-owned groups trying to appropriate inappropriate terms for their work (Viet Cong, the Redskins, etc.) - would actually start addressing this problem themselves and with each other. Women, minorities, and the groups getting appropriated can't spend all day every day pointing it out for them. I'm tried of having to police these kinds of people because they are too lazy to do something about this problem, especially when they don't think there even is a problem.
Basically, if you can't see why it is a problem to appropriate inappropriate names for your band, sports team, and so on, or don't think it is a problem, then you are part of the problem. Because you're never going to be negatively affected by it. That's called privilege. And you need to recognize it, and stop using it as an excuse. Just look at the difference in the struggle between The Slants and Preoccupations: one band had to spend over six years and take a case to the Supreme Court to claim full legal ownership of a name that is directly about them, while another appropriated a highly offensive name from another culture's history and probably only benefitted from the press they received in the fallout. That is straight up (white male) privilege.
If you want to join and benefit from society - have a rock band, root for a sports team, and make money on these kinds of things - then you have to respect that you live in a society. Which is by definition, full of other people. And if you want to live in a society that supports music and creative expression, that also means respecting other people, groups, and often rules and perspectives that are not your own. Because creativity thrives on diversity and the conversation it creates, and you're not always going to get your way. But if you don't like the way something is going for you or your community? Then you can try to work within the system to change it. Either way, there's always a chance to step up.
And in the case of The Slants, if you got it - your registered trademark, that is - rock it.
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