I 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.
This reminds me of the people who think that the term “chink in the armor” is somehow racist.
http://legalinsurrection.com/2013/08/brown-bag-controversy-reveals-chink-in-armor-of-language-police/
The incessant attempt to turn race-neutral phrases into racial testing grounds is part of a larger political war in which race agitators seek to turn everything into a discussion of race all the time in every sphere of life.
At some point this farce will reach a tipping point and the SJW types are not going to be very happy.
Being homosexual isn’t a religion or a belief. It’s something that most are born with, just like blue eyes or a birth mark, or something that happened during the development before birth. However if you’re in the anti science camp, you might refute that. All the other things you list are choices.
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?
JT is very strong on free speech. That makes this a very important blog. The left hates free speech. They want to control speech because they have the intellectually flawed belief that by controlling speech you can control behavior. And, we know liberals LOVE to control behavior as well. PC must be stopped by any means necessary.
What if the band was comprised of former football wide receivers? A slant pattern is a pass pattern. It is a noble one that many prissy wide receivers don’t want to run. A slant pattern takes you over the middle of the defense and assures you will be hit hard. You would think the absurdity of speech control would end it. But, it won’t. We must crush PC.
Pogo:
The American model of government, a constitutional democratic republic, protects the constitutional rights of all citizens – even from the voters. Congress is very powerful but they are not allowed to pass laws “out of bounds” that violate the U.S. Constitution. When Congress does pass illegal legislation, it is the duty of the U.S. Supreme Court and subordinate courts to reject that legislation.
If you want a theocracy, like Iran and Saudia Arabia where the Bible is the governing document, the Old Testament allowed polygamy and incest – not just one man and one woman.
This is a confusing Slant video. Need PC police here. Asian guy is singing wearing shirt with Indian on it. Need to do DNA test on lead guitarist.
He doesn’t look Asian. Could be a half breed though. These Slant videos could provide incriminating evidence.
And your tyranny is based on the redefinition of a word, marriage, that has never meant anything but the wedding of a man and a woman or women.
Ross, then you merely counsel tyrrany by the minority, the factions of which Madison warned.
“I. Annie: Why should every American be forced to be “tolerant” to anyone’s nutty religious or cultural belief?”
Oh, just that being foundational to the fight American independence and the Constitution that followed.
Other than that, no reason at all.
Pogo:
James Madison warned about the “tyranny of the majority” when the majority group exercises too much democracy – when democracy is “out of bounds” and harms other citizens or violates others’ constitutional rights. The Bill of Rights were designed to restrain government officials when acting on behalf of the “tyranny of the majority” instead of honoring their oath of office to the U.S. Constitution.
The majority group (heterosexuals in your example) are free to marry and adopt children which includes tax rewards by government agencies. Homosexual couples are denied all of those government benefits that hetereosexual couples receive. Hardly fascism when the majority group already has those rights.
For-profit corporations open to the general public (like bakers and photographers) are legally two persons: the corporate person and the human person (the owners or shareholders). It is designed this way to “separate” the owner from the for-profit corporation. If someone sues the corporation it also protects the owners’ personal assets but it cuts both ways – owners can’t enjoy that protection of separation and then also claim their for-profit corporation has religious rights also while enjoying immunity from personal lawsuits. As with any business, all expenses are paid indirectly by the customers not the owners of any business.
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.
Why should every American be forced to be “tolerant” to anyone’s nutty religious or cultural belief?
Liberal fascism is modern Puritanism, the clergy replaced by ex-hippies who watch MSNBC, are paid by the government, and promote ‘diversity’ through intolerance.
They don’t burn witches, just bakers and photographers.
The First Amendment protects unpopular and even offensive speech from government censorship/intervention except for rare exceptions.
This is a government agency playing censor with constitutional speech that doesn’t fall into the rare exeptions like slander, libel, etc.
These agency practices of violating the First Amendment also raises some Fourteenth Amendment issues as well. For example, Janet Jackson was harmed by the wardrobe malfunction years ago by a government agency but male performers can do the same thing and not be penalized for the same behavior. Constitutionally there must be equal application of the laws.
Simon Tam, thanks for participating here.
I’m not an IP lawyer, but here are the basics as I understand them. It is easier to enforce a federally registered trademark than a common law trademark. The holder of the trademark has access to the federal courts to enforce its rights under a federal statutory scheme. A common law trademark is a creature of state law, and enforcement proceedings would probably end up in state court where the results could vary wildly from state to state.
Yes, you are correct, as I did use the terms interchangeably. Thank you for zeroing in in that sloppiness on my part.
Let me clarify by amending my comment to refer to “registration to the extent it creates protection rights.” Regarding the hollow, stripped down act of registering and having that registration accepted — in such a way that the fact of the registration creates no presumptions as to protections, I agree that the registration itself should not be filtered. I just don’t know that a registration can be carved up in this way, divorcing it from presumptions of protection.
You allude to this yourself, I believe, when you point out that the denial of the registration imposes an “unconstitutional condition on the receipt of valuable government benefits.” What valuable benefits flow from the registration? To the extent that these are protection benefits, and to the extent that they burden the First Amendment rights of others (which I admit concerns me in only a theoretical sense, as I am not sure how badly the trademark protections will hamstring people in conversation), I see the free speech impact on you — which I agree exists — being offset by an impact on others if you prevail. Whether that offsetting impact rises to a level that makes us disinterested in the impact suffered by you and the Slants, I can’t say. I do believe, though, that your right of registration comes at a cost to others.
I’m not arguing against your position at the rehearing. I just think this offsetting interest point may be one, perhaps horribly minor, point your counsel may need to rebut. Good luck with this hearing and more importantly with your music career/avocation.
Isn’t there a flip side to this, also worthy of protection? If a name is racially disparaging, doesn’t the granting of trademark protection stifle the free speech rights of those who wish to throw that insult around? Trademark protection, at its core, always burdens free speech, so as long as we confer trademark protection at all, we’re implicating free speech rights. The question is whether we want to deny a registration for this reason…and, while I am seduced by your argument at first blush, I am not sure how compelling it is given that the granting of trademark protection creates an offsetting burden on free speech rights for everyone else.
I think you’re confusing trademark protection with trademark registration, which is what is at stake here. Trademark registration at its core doesn’t burden free speech, it’s meant to reduce confusion in the marketplace and protect consumers. Trademark protection may occur whether or not a mark is registered . Generally speaking, the denial of a trademark registration is considered an abridgment of free speech, especially when it is artistic or socio-political speech, because it involves viewpoint discrimination by the government. Furthermore, the law in question, Section 2(a) of the Lanham Act, burdens private speech by placing an unconstitutional condition on the receipt of valuable government benefits.
Darren – I don’t believe so: 8asians.com/2013/02/22/slanted-process-us-trademark-office-says-anyone-but-asians-can-trademark-the-slants/
I am curious if the band was not of Asian decent, would the examiner not put The Slants into this context?