The Slants Get Denied Trademark on Name for Fear of Disrepute to Community, Redskins Trademark Still OK
Slant: from the Scandinavian meaning to strike obliquely; to give a direction other than perpendicular or horizontal and to present so as to conform to a particular bias or appeal to a certain audience. Slant became a controversial slur in the 1920s to refer persons of Asian descent.
Then along came The Slants, an Asian-American dance-rock band who have donned the name to empower a community often taunted with the term. The name has drawn some mixed feelings.
In February, the United States Patent and Trademark Office (USPTO) denied the band’s trademark request because the language violates 15 U.S.C.A. § 1052(a). The USPTO found that the name could be perceived to “disparage or falsely suggest a connection with persons . . . or bring them into contempt, or disrepute.” This conclusion came despite the documentation submitted by The Slants’ attorney showing community support for and community participation by the band.
The band is currently working on an appeal to the USPTO. The law firm representing The Slants is claiming that the USPTO does not have the right to define what is disparaging and that said determination should be left to the community affected.
Their battle is reminiscent of the litigation over the Redskins trademark that has been ongoing since 1992. In 1933, the Redskins changed their name from the Braves to honor their Native American coach, William Henry “Lone Star” Dietz. The case, which in November 2009 was denied a hearing by the Supreme Court, has been recently revitalized through formal protests to the USPTO over several pending Redskins trademarks.
If The Slants’ appeal is successful, it will call into question whether groups that would be the targets of otherwise disparaging terms would have a unique exception to the rule. The idea that self-referential terms should be treated differently, as they are celebrations of the culture and therefore do not fall into a category of disparaging uses was suggested by Mari Watanabe, Asian-American community activist, in a press release distributed by In Music We Trust.
As it stands now, the finding of the USPTO is absurd in light of the continued support of the Redskins trademark. While time may have been the biggest factor in the Redskins case, the USPTO cited the heavy coverage of their name in news stories about the band as a reason to deny The Slants their trademark—coverage that the Redskins name does not face regularly. This seems to lay the burden of trademark acceptability on the media and sets a perplexing precedent for future trademark applications.
Great article! Although the court does not say it explicitly, it decided not to cancel the mark DYKES ON BIKES after a man (who had apparently been beat up by biker chicks (true story)) brought a cancellation suit for disparagement. Since he was not the target of the "harm" allegedly done by the trademark, then the mark was not disparaging to him. However, if a lesbian motorcycle rider were to bring the suit, maybe things would have been different?
nice article…did you see mine on the Redskins trademark litigations? http://www.ipbrief.net/2011/02/27/2420/
[...] noted by EmilyRose Johns of the American University Intellectual Property Brief, it seems interpretation of the provision is highly subjective as the Washington Redskins have been [...]