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.
Issac said…
JT is a watch dog for free speech and this is a necessary position.
I agree completely. Government is not the arbiter of words…nor should it be.
Most any rap soliloquy with N-words should make that clear. If I, a white Irish kind of guy, use the N-word I am not guilt free…there really is a difference in who says what. It really is not that hard to discern.
And I do so, vis a vis “words”, without any qualifications other than those I’ve mentioned previously that are personal and between two people. Everyone is free to say what they please, and they are equally free to get their behinds kicked if it personally hurts someone else.
Now as for the term “Asian-American” …or “Arab-American” … or whatever hyphenated term, that is BS unless a first generation immigrant….if you just must distinguish. If you are a citizen, you are American, period. You’re born here,l raised here, live here, you are an AMERICAN, period. I have this discussion with neighbors regularly. None so far have disagreed.
Aridog,
Oh my oh my. I guess you aren’t all that interested in discussing the topic of this blogpost afterall…. as I suspected. No I won’t feed into your drama and distraction, look elsewhere.
I.Annie…as usual you failed to answer my simple question about how a racial pejorative relates to LGBT issues? And you lied about what ” Pogo” said at 8:49 AM…which I quote here ( note the lack of comment about LGBT):
Liberal fascism is modern Puritanism, the clergy replaced by ex-hippies who watch MSNBC, are paid by the government, and promote ‘diversity’ through intolerance.
I don’ t care who raised the point, although literally, as cited above, they did NOT raise it, fact is you extrapolated on it and you elaborated on it….when it had nothing to do with “slants”, a pejorative I find very offensive unless used by those who actually are “slants” ..which in this case they are in fact. If my daughter wants to call herself a “gook” (transliterated from the Hangul “Guk”…e.g., “people”) so be it…if someone else does, in a pejorative sense, we have a fight on our hands. Period.
Again I ask: How does anything LGBT relate to the issue of a pejorative about race per se? I know you won’t answer, perhaps because you cannot. Professor Turley’s point is correct, yours is absurd.
Are we done yet? Can you move on? I’d bet not.
While using pejoratives is uncivil, giving the U.S. Patent Office the authority to deny patents on these rude titles and names is an overreach of government. I think it’s better that the individual groups that are being insulted sue the pants off of groups who use such pejoratives as their names.
Nick
“Free speech is not a left right issue..”
I included that in my post. However historically it has faired better under the left. Libertarian or not there will always be a point(s) where rules and freedoms collide. Perhaps the left has not contributed to individual freedoms in every case but in no way is the left more restrictive than the right. The position of the Libertarian is, for the most part, idealistic. Allowing this group to call themselves by this name, ‘The Slants’, may offend some and not others. It demonstrates a need for review and by no means only an invitation for Libertarian arguments. This is the same with ‘Redskins’ and the sometimes argument of ‘African Americans’ over ‘Blacks’. I have friends who are Black and prefer to be called Black. Yet I get corrected and lectured from time to time when I use the term Black.
JT is a watch dog for free speech and this is a necessary position. However, it takes no great level of perception to notice when moments occur that surface the impossibility of absolute ‘free speech’. The very fact that this blog and other venues would censor my opinions if they included certain words proves the impossibility of absolute Free Speech.
This is no different than the student designing swastikas in public spaces and referring to ancient Indian designs. The intent is to step on certain people’s feelings and to provoke.
The greatest freedom is perhaps the freedom to bicker and banter over these indiscretions, and they are indiscretions.
My greatest criticism is that in this cesspool of major league indiscretions that occur daily and seem to be either accepted or ignored, we get lost in these trivial events. I invite JT to spend more time and attention focused at the so called elected representatives and the lies and perversions they produce, from both sides of the aisle. Seems to me more important that this youthful moment. There are better examples.
Aridog, your protestations of going off topic are simply hot air and drama, as you and others OFTEN do it yourselves. Now if you want to discuss the topic, feel free no one is stopping you, but instead you have taken up space and time to veer from the topic even more than I have. Now get back on topic.
OK, now back on topic, the use of the title “The Slants” isn’t the purview of the U.S. trademark and Patent Office. As JT said, it’s akin to a fourth branch of government.
Hmmm. I wondered how Niggaz With Attitudes (N.W.A.) would do in this environment??? Sooo, I googled it, and hit this website, which has a great comment section, and Mr. Tam makes some good points there, also:
http://www.bigwowo.com/2011/04/the-slants-and-bigwowos-support-of-the-u-s-patent-and-trademark-office/
Squeeky Fromm
Girl Reporter
I. Annie…right you are, lets all ignore the efforts of Professor Turley and go this way or that as we please. And now its horses and dogs…really? Did I mention them here? No, you just did. You are the master of deflection. Now tell me how the discussion of “slant” as a potential pejorative relative to anything LGBT? I’ll wait.
Bye.
It was discussed because Pogo brought up “tolerance”@8:49 AM. Conversations do tend to go this way and that sometimes and do not always travel in a straight line. At least no one is discussing horses or dogs.
The diversion of this thread to idiotic subject mater is enough to make me leave here and not return. Maybe that’s be the best idea for me. Professor Turley tries to create a sane place to converse, and too many a’holes wreck it with diversions. I may be back, or maybe not…I mean why bother discussing racial pejoratives per se, vis a vis “trademarks” not some sex equality crap, in the same breath with LGBT BS? No reason I can think of…and you?
How in flipping Hades does a topic of trademark relevancy to the term “slant” get to the LGBT crapola again? Who give’s a rat’s butt about LGBT in this subject arena? I for sure do not and I am not anti-LGBT, just get very tired of it being the be all end all every f’ing time. The topic is about pejorative terms for gooks, slopes, slants, chinks, etc….all of which I’ve dealt with face to face with my own child. I am very “intolerant” of those pejoratives…and act accordingly when they come up in my world. Next, how the flip do “gun nuts” (which I suppose I am ) have to do with the topic at hand? Nothing, that is what.
When heterosexuals enjoy the liberty of marriage and homosexuals don’t, it’s likely unconstitutional. In June it will be clearer. It’s a matter of civil rights. Choosing to discriminate based on a sexuality that someone is BORN with is and will expressed sometime by the age of 4 to 7 IS discriminatory. Must it really be spelled out to people in this day and age?
Isaac, Free speech is not a left/right issue. Both want to control. It is a libertarian issue. We libertarians have no desire to control, we simply don’t want people to try and control us.
Isaac, When I went to college back in the 60’s/70’s the left was indeed the free speech folks. I’ve had this same discussion w/ Mike Appleton. But, they have ascended to power, total controlling academia, and now have speech codes, rape kangaroo courts, and other PC horseshit. This is not even debatable. Go to TheFire.org for daily documentation of this pernicious attack on free speech by the left. The left, including your guy Obama, are pushing for blasphemy laws. JT writes about this. You’re living in the past, Isaac. Read Camille Paglia on the subject. A feminist, lesbian, left libertarian.
That’s right DBQ listen to Spinelii, please don’t respond to me, thank you.
Nick
I’ve only been around for sixty+ years and have only lived on two continents, in three countries and that may not have observed enough to equal your ‘authority’, but I remember it was always the ‘left’ that was standing up for rights, freedoms, etc. It seems it still is the ‘right’ that wants to restrict Americans regarding sexuality, upward mobility, and a host of other freedoms.
The party in power, whether that be at the federal, state, or city level, regardless of political affiliation, will always be accused of curtailing this or that right. It comes with the territory. However when it comes to the progress of society, freedom, and human rights, the left remains far out in front of the right. The more advanced and free societies on this earth are that way because of the left, not the right. Wealth concentrated at the top is a by product of the right. Take the time to study the course of history under socialist, (not dictators like Stalin, Mao, etc-these moments in time reflect only the words used by dictators who came to power through chaos) freely elected governments. Right wing economics has proven itself to be a failure in the last two adventures of Reagan and Bush. Throughout the Western World the successful economic model is that of a socialist Germany or Denmark. The right wing credo of everyone can make it to the top with a little hard work is somewhat akin to a religious fairy tale. The place in question is the middle. Review the erosion of America’s middle class and then look for the reason. It will be the oligarchs, the puppet politicians, the right.
DBQ,
I’m intolerant of people who choose to do things that hurt others who are not threatening them in any way. Gun nuts and Fundamentalists do hurt people. Take a look at ISIS.
DBQ, You have just been trolled. Not feeding a troll is the only way. Squeeky has been doing a superb job. This is a fascinating topic about PC. Don’t drink the poison.
Being homosexual isn’t a religion or a belief.
Getting married is a choice. Forcing everyone to agree with it is an action.
And once again I must put my disclaimer: I don’t give a rat’s left buttock if gays get married. I object to the forcing of their actions and beliefs on those who DO object.