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Asian-American Band Can’t Trademark “The Slants”

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The Slants Pageantry

Image courtesy of press release

The U.S. Patent and Trademark Office (USPTO) has once again denied the trademark application of Portland-based dance-rock band The Slants because it says the name “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage. . .” in reference to the term “slant” as a derogatory term for someone of Asian descent. This was the group’s appeal from a previous rejection.

The above-quoted statutory language comes from Section 2(a) of the 1946 Trademark Act and is a “relatively uncommon” reason cited for trademark denial according to Cynthia Lynch, administrator for trademark policy and procedure (quoted at Oregon Live). But that fact doesn’t much comfort The Slants, made up of four Asian-Americans who play for largely Asian-American crowds.

According to a press release from the band, The Slants are “widely known as an advocate for Asian American rights, being involved with numerous API [Asian and Pacific Islander] organizations and charities. The Slants have traveled throughout North America presenting racial justice workshops, inspiring youth to reconsider stereotypes of Asian Americans, and to take pride in their cultural heritage.”

The group also noted the common use of the term within the API community such as in “The Slant Film Festival, a documentary of Hollywood racism entitled ‘The Slanted Screen,’ Chicago Asian American TV show ‘The Slant,’ and popular Asian magazine, ‘Slanted.’”

In addition, the Slants have the support of several prominent Asian-American groups and individuals, including Mari Watanabe, executive director of the Oregon Nikkei Endowment, who wrote, “This use does not disparage Asian identity; it celebrates it.”

The Slants maintain that “[t]he determination of whether a specific term or phrase is disparaging can only be made from the point of view of the referenced minority group.”

But the USPTO found The Slants’ arguments and community support “unpersuasive,” calling the band’s efforts perhaps “laudable…[but] rarely does an article introduce the band without commenting on the controversial nature of the band’s name.” The office referenced wiki-articles that used or defined the term as derogatory as support for its decision.

But is Section 2(a) being applied consistently?

As 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 allowed to register their name even though Native American groups have actively protested it.

To be clear, there is certainly no law against the band using the name “The Slants”—and reportedly they have no plans on changing it—but what they have been denied is the legal protection and benefits that a registered trademark affords, including the right to bring a federal lawsuit for violations.

The Slants are planning another appeal.

What do you think about The Slants’ trademark request? Should it be granted or has the USPTO made the right call?

Want to learn more about this and similar cases? Check out this article on trademark refusal for scandalous, immoral, or disparaging marks.

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March 29th, 2011 at 9:11 am