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American band The Slants get trademark law rewritten

By | Published on Tuesday 20 June 2017

The Slants

A rock-synth-pop outfit from Oregon called The Slants have set a significant precedent in American trademark law, after the US Supreme Court upheld a lower court ruling to the effect that the country’s First Amendment free speech rights mean trademark applications can’t be rejected on the basis they are offensive.

Simon Tam, the Asian-American frontman of The Slants, went legal after the US Patent & Trademark Office rejected his attempt to register his band’s name on the basis it contained an offensive word, ‘slants’ being a derogatory term used to refer to those of Asian descent.

Tam pointed out that his band’s use of the word was, in part, an effort to ‘reappropriate’ the derogatory term, telling CBS News earlier this year: “I was ridiculed as a kid for having slanted eyes. Now I’m saying it’s something that I can be proud of, not something to be ashamed of”. And whatever the band’s motives, he added, rejecting trademark applications on the basis of offence was unconstitutional.

America’s trademark laws do actually allow for the registry to knock back marks that “disparage persons, institutions, beliefs or national symbols”. To that end, the question the court needed to consider after Tam decided to fight the Trademark Office was whether or not that bit of the country’s Trademark Act (aka the Lanham Act) violated the First Amendment of the US Constitution.

The Supreme Court reckons it does. Or in the words of one judge, Samuel Alito, this element of US trademark law “offends a bedrock First Amendment principle – speech may not be banned on the ground that it expresses ideas that offend”.

Welcoming the Supreme Court’s ruling, Tam wrote on Facebook: “This journey has always been much bigger than our band: it’s been about the rights of all marginalised communities to determine what’s best for ourselves. During the fight, we found the Trademark Office justifying the denial of rights to people based on their race, religion, sexual orientation and political views, simply because they disagreed with the message of these groups”.

He continued: “To that end, they knowingly used false and misleading information, supported by questionable sources such as, while placing undue burdens on vulnerable communities and small business owners by forcing them into a lengthy, expensive, and biased appeals process. The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination”.

It remains to be seen if the new precedent results in any new trademarks being registered that are arguably offensive, possibly from applicants with different motives to Tam. Many have noted that the ruling should aid the American football team the Washington Redskins, which has faced legal issues over its trademark. Others have pointed out that the Trademark Office has, in the past, been somewhat inconsistent in what it considers to be offensive, so if nothing else Tam’s success should mean less unpredictability in the registration process.