Victory for The Slants! The Portland-based rock band, who have been embroiled in long-running legal struggle for the right to trademark their name, has scored a big victory in the Court of Appeals for the Federal Circuit.
Government Can't Deny Trademarks Over Offensive Names, Appeals Court Rules
The Slants' founder and frontman Simon Tam has been locked in a widely-publicized six-year battle with the U.S. Patent & Trademark Office, which refused to trademark his band's name on the grounds that "slants" can be interpreted as a racial slur. At issue in the case was Section 2(a) of the Lanham Act, which allows the USPTO to deny or cancel a trademark if it is "disparaging" of persons, institutions or national symbols.
On Tuesday, the Court of Appeals for the Federal Circuit ruled that the band's name is private speech, and the USPTO's refusal to grant the "Slants" mark is a violation of Tam's First Amendment rights.
"It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys," writes Federal Circuit Judge Kimberly Ann Moore. "That principle governs even when the government's message-discriminatory penalty is less than a prohibition."
Tam, who is Chinese American, contended that the band's name is an attempt to reclaim an offensive term.
For the record, I have previously spoken out in support of The Slants and Simon's position. I honestly wouldn't be cool with some asshole on the street calling me a "slant" but I also think there must be room for our community to debate, subvert, reinterpret and reclaim "disparaging" terms. I'm not comfortable with the government -- and in this case, certainly not the USPTO -- to make that decision on our behalf.
"Courts have been slow to appreciate the expressive power of trademarks," Moore writes. "Words -- even a single word -- can be powerful. Mr. Simon Shiao Tam named his band The Slants to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech."
Moore also writes, "This case exemplifies how marks often have an expressive aspect over and above their commercial-speech aspect. Mr. Tam explicitly selected his mark to create a dialogue on controversial political and social issues. With his band name, Mr. Tam makes a statement about racial and ethnic identity. He seeks to shift the meaning of, and thereby reclaim, an emotionally charged word. He advocates for social change and challenges perceptions of people of Asian descent. His band name pushes people. It offends. Despite this -- indeed, because of it -- Mr. Tam's band name is expressive speech."
Read the full opinion here.
Simon reacted to the decision on Twitter, calling it the "BEST PRESENT EVER":
Of course, as many have noted, this decision could mean more registrations of offensive marks -- including the Washington Redskins. The USPTO canceled the football team's registration on similar grounds.
"My case is not the floodgate for hate speech," Simon wrote in a guest post for 8Asians last August. "It's the door for anti-racist speech. Let's open it up."
More here: Rock Band Wins First Amendment Appeal Over "Disparaging" Trademarks