Asian American Band Granted Appellate Hearing On Denial Of Trademark Of Its Name As Racially Disparaging

textonlyI have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name. That case is still being appealed but a new case may well answer some of the question raised in the prior column. An Asian American rock band called “the Slants” has appealed a decision to deny it trademark protection — allowing the question to be heard by the U.S. Court of Appeals for the Federal Circuit. A panel previously upheld the denial in In re Simon Shiao Tam, 2015 U.S. App. LEXIS 6430.

Tam is the “front man” for the Asian-American rock band The Slants and, in 2010, filed an application seeking to register the mark THE SLANTS. However, the examining attorney found the mark disparaging to people of Asian descent. Tam appealed, but the case was dismissed for failure to file a brief and the application was deemed abandoned. He filed a second application seeking to register the mark THE SLANTS for essentially identical services but it was again found the mark THE SLANTS is disparaging. The panel followed a prior ruling of the Court in In re McGinley which held:

With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appellant’s First Amendment rights would not be abridged by the refusal to register his mark.

Notably, the appeals court granted the rehearing without a request by the band — one a week after the panel agreed that the name was disparaging and could be denied protection. The author of the majority opinion, Judge Kimberly Moore, filed a separate opinion calling for the court to reexamine the ban on disparaging marks in light of First Amendment concerns.

The result could obviously reverse not just this decision but the Redskins decision. As I have previously written, I believe that that would be the correct result.

I have long criticized the rise of a “fourth branch” within our tripartite system. Agencies have gradually assumed greater authority and independence in the governance of the country, including the resolution of political and social issues like the debate over team names. With the help of a series of Supreme Court decisions, agencies now enjoy sweeping deference in their enforcement of federal laws. Adding to this dominance are judicial rulings giving agencies heavy deference in their interpretations of laws under cases like Chevron.

This case raises particularly troubling free speech issues in denying protection to a band that obviously chose this name to elicit a response from the public. Such issues are ideally left to the public and the market to sort out. However, as with the Redskins, these decisions constitute a form of content-based speech regulation. Insulated from participatory politics and accountability, these agencies can shape political and social decision-making.

75 thoughts on “Asian American Band Granted Appellate Hearing On Denial Of Trademark Of Its Name As Racially Disparaging”

  1. One of the most successful restaurants in San Francisco in the last 20 years I s a n Asian fusion place….with multiple spinoffs…..called The Slanted Door. I have never heard anyone gripe about the not so subtle humor in the name. Give me a break. Laugh a little, people

  2. The terms “gay”, “trans”, and “shemale” should be banned as they are universally disparaging. Instead, I submit we use the term “under-gendered” to describe those struggling with their birth identity.

  3. happiepappies

    I get like that too, late at night. Time for bed.

  4. The irony of this blog talking about an Asian, on the 40 year anniversary to remember one of the ugliest wars of modern history. No need to mention here, though – respected Statesman.

    Shhhh… that would make us look bad. Human rights are a value in the US!!!

  5. issac “His early on comment that I don’t know what time it was (lol)”
    What if a Vietnamese American ski team wanted to call themselves the ‘Slopes’? This does identify a slippery slope, however. Words, logos, and other visual and audible iterations of what society has considered vile will include some that are not so cut and dry as a swastika or the ‘n’ word. Like in the movie ‘Pirates of the Caribbean’, these laws are more like guidelines.”

    Hey Issac – how are you – I have been following your posts the entire thread and I concur. You realize I was just teasing you before and this darkness that I hear tell of that overcomes the blog in the form of the destruction of the first amendment by some weird occult creation of the 4rth branch of Government which if I remember the histology of it is the DOJ or the AJ or whomever took Holder’s Place and has Obama’s ear to march around the Country and will take over and bust up the Constitution that Madison so Assiduously put together.

    I liked the pencil flying all over the place metaphor – or was that a simile.

    How dare all of you gang up on Aridog with his beautiful Korean Daughter like that?

    Not you Issac – never you – DBQ – who gives a rat about whether or not you feel like you are put out about the gays. And why is it okay for you to say something but no one else? How fair is that?

    Why do I say this – She does out of nowhere all the time and it is tolerated and I am tired of it and I am not going to visit for a while after that.

    “Dust Bunny Queen Some where back in this hateful diatribute
    Why should every American be forced to be “tolerant” to anyone’s nutty religious or cultural belief?

    ABSOLUTELY CORRECT. Why should every American be forced to celebrate homosexual marriage? Why should every American be forced to accept Sharia Law in our own country? Why should every American be tolerant of people who refuse to learn English and communicate?

    I could go on and on.

    Why should anyone be forced to be “tolerant” about anything, when the left picks and chooses who we must be tolerant towards.

    Are you tolerant of those who chose to conceal carry in public or have guns in their homes? Are you tolerant towards Fundamental Christians?”

    Well, I will leave with 2 quotes from a very conscious man

    “People demand freedom of speech as a compensation for the freedom of thought which they seldom use.”
    Soren Kierkegaard
    or, how about this
    “Take away paradox from the thinker and you have a professor.”
    Soren Kierkegaard

    Nahhhh, no one will understand that one here, maybe Mespo would have.

  6. Nick

    I’m sure there is a song about learning and recognizing examples of better things. Hopefully, someday, you will hear it.

  7. Squeek, Questions and taunts are the pathology. Stay strong. Attention is heroin, and it must be withdrawn. Cold turkey!

  8. And, you are deflecting the FACT that in the last several decades, it is the fascist left controlling speech. That point is not debatable so you equivocate, and change the subject. The fascists are your peeps, bro! Deal w/ it.

  9. Isaac, From your comments over time it is painfully obvious you are clueless about our superior 1st and 2nd Amendments. You revere Europe, that is the antithesis of those 2 critical amendments, that has made us the greatest country ever. I am humming the Lovin’ Spoonful song, “It’s like tryin’ to tell a stranger about rock n’ roll.” The foreigners who understand the freedoms this country affords, are successful people.. Those who do not understand are resentful people who keep trying to convince us Europe and Canada are the places we should want to be. But ,THEY NEVER LEAVE THE US. These malcontents become curmudgeons who sing about their glory days in France and Canada. BUT THEY REMAIN HERE IN THE US. Sound familiar, chief?

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