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. @George

    Oh, I am not in a committed relationship of any sort. I even stopped dating about 5 years ago when I threw my last boyfriend out. I am really biased towards peace and quiet and sanity.

    Squeeky Fromm
    Girl Reporter

  2. Oh, excuse me; my impolite omission. Squeeky, how’s the wife?

    P.S. This is in the Constitution, I swear:

    Sticks and stones
    Will break my bones
    But names
    Will never hurt me

    Not understood by Harvard and otherwise “intellectual” elitists,
    but securely in the grasp of “commons” everywhere.

    Disparagement is a moral not a legal issue.

    Yet more frivolity brought forth as a waste of taxpayers’ dollars. If we understand the “frivolous,” we will similarly understand the serious. Abraham Lincoln killed 1 million Americans because he couldn’t understand the serious constitutional sections against him. As Chief Justice Taney told Lincoln that he, Lincoln, did not have authority to suspend Habeas Corpus, Lincoln had no authority for his entire “Reign of Terror.”

    What Lincoln did have the full right and opportunity to accomplish were economic measures against his hated slavery. Lincoln could have formed a coalition to boycott American slave cotton worldwide. He could have pursued a campaign to fully ostracize slave owners, again, worldwide. Lincoln could have accomplished the termination of slavery through efforts, all in the private sector as his “blessings of liberty.”

    As the final criterion, we could ask if the issue was taken up or addressed by the Founders in 1789. That will give us the answer we need to understand the letter and spirit of the law.

  3. Nick

    Your argument has deteriorated to that condition you so personally warn against. The reason the US is powerful in comparison to other countries has next to nothing to do with the Constitution and the various freedoms. The US is ten times the population of Canada and has just crested in its colonial experience. With colonial adventures having transitioned from military to almost completely economic, the US is settling in to what will be a less than first place. The US is a great country but so are many others. The one fault shared by all colonial powers is that of the blinders that come with being number one. The ‘We’re number one’ typically infers ‘We never make mistakes’. When the mistakes are pointed out it is extremely difficult to accept where they come from and thus the finger pointing. It is particularly irksome when someone other than an American makes an observation. I have lived long enough in this country and am also a citizen. Your finger seems to fly off in many directions at once when you get excited. Canada has little to nothing to do with the problems of the US system of government, except in providing a valuable contrast of a system much better designed. The multi party Parliamentary system is by far more democratic and equitable than the system of left and right polarizing each other with no one noticing that regardless of whom one votes for, that person is the poodle of an oligarch.

    There isn’t a country in the world that doesn’t reign in its freedoms depending on circumstances, the US included. This position of absolute freedom in all respects is an ideal or a goal. It seems to form the foundation of the ‘libertarian’ ideal. This ideal is particularly isolated as it is based on what is next to impossible if not impossible. It can never be achieved in its totality.

    Yes there is power in having a dozen nuclear carriers and a few hundred ships to go with them as well as all the other military stuff. However, that has little if anything to do with America’s Constitution. Also, I haven’t experienced any less freedom in Canada, France, or the other countries with which I am intimate. Don’t confuse freedom with ego. There’s a lot of rampant ego in the world today and times are illustrating that it is more the problem than the necessity.

    Now is a good time for you to bring up all the times America has saved the world’s ass. Hard to argue with WW2 but that has nothing to do with the discussion, or does it.

  4. Nick…yeha, I am smarter than that. Best idea is for me to just skip Turley’s topic grinder and make Allie Oop happy.

  5. Just how difficult is it for any reader of this comment board to identify the bigots? I’m guessing: not at all.

    What is it about type of topic that causes the bigots’ keyboards to light up brighter than Rudolph’s nose on a foggy Christmas Eve?

  6. That’s right Aridog, do as Spinelli directs you to do, don’t respond to my comments, ignore me, THANKYOU in advance, lol!

  7. ARI, WTF??? Show some freakin’ self control and do what Squeeky has been doing, not drinking the poison. I KNOW you’re smarter than this! IGNORE!!!!

  8. Isaac, In case you haven’t noticed, the LEFT has been attacking free speech for the last 3-4 decades. The first step in solving a problem is ADMITTING you have one. JT, Camille Paglia, and other intellectually honest liberals point this out and are vilified by the left for having the temerity to speak the obvious truth. Your pitiful dance about history is fiddling while the US burns. Free speech is under a blitzkrieg attack and it is the left being the Storm Troopers and Luftwaffe. If you want to have some esoteric discussion on the historical attacks on free speech, there are left wing echo chambers that will accommodate you. I’m concerned w/ the present. I live in the present. A good way to live your life in all respects. Finally, your PC slip is showing vis a vis nicknames. Canadians don’t understand our Constitution. That’s why we are so much more powerful and free than Canada. You are part of the problem, not part of the solution.

  9. I see in the Constitution a clear and immutable right to freedom of speech.

    I do not see ANYTHING about “disparaging” mitigating or modifying that right.

    It was understood from the outset that FREE SPEECH would insult the party it was directed at. We could finally insult the King with impunity.

    When we FAIL to grasp that which is/was understood, the principle fails. The Founders told us initially and presumed that we understood that government was limited, in perpetuity, to Justice, Tranquility, Common Defence and Promote General Welfare. The “blessings of liberty to ourselves and our posterity” were/are FREEDOM and FREE ENTERPRISE WITHOUT INTERFERENCE BY GOVERNMENT. America has failed for not understanding and not imposing the severe limitation of the Preamble. The Chinese understood what the American Founders wrote. China uses the model of American Founders; the restricted-vote republic with freedom and free enterprise. China made 50 N.Y. cities in no time. China creates a constant flow of new billionaires. China punishes corruption such as “influence peddling” by officials. China is a free enterprise juggernaut on an inexorable path to global hegemony while America debates that which is “disparaging.” China is the “apple of the eye” of the American Founders, who are rolling over in their graves.

    Defamation can be quantified as damages.

    Prove that in civil court. That works.

    The Founders gave us the RIGHT TO INSULT THE KING.

    America has a new king who shall not be disparaged? Seriously?

    P.S. This presentation ad absurdum, ad nauseam, ad infinitum, SECURES the case that arguments must be no longer than the relevant passages in law or the Constitution.

  10. Aridog,
    See my comments @1:31 and the second paragraph @ 1:35. Your continuous attention to me is a distraction and getting silly, makes you look foolish. I get it that you are PO’d that the thread momentarily went off topic, but your continual comments regarding it are indeed worse than the initial off topic discussion. Now get back on topic.

  11. I. Annie…I asked you at 3:25 PM what the topic of this post was….I am still waiting. Explain away…if you can.

    I’m quite interested in discussing ” Asian American Band Granted Appellate Hearing On Denial Of Trademark Of Its Name As Racially Disparaging” (Professor Turley’s title for this post) if that might still be possible.

    How about you?

  12. Further drama and distraction, oh and hypocrisy. But hey if y’all aren’t interested in discussing the topic of this blogpost and want to get back to talking about RFRA and LGBT issues, sure I’m in!

  13. The irony of Annie lecturing anyone on “drama and distraction” is not lost on regular readers of this blog.

  14. I. Annie…okay, explain to me the topic of this blogpost vis a vis “…Name As Racially Disparaging” (quoting Professor Turley) versus what you assert I am not interested in discussing? I’ll wait & listen.

    I’ve made it v-e-r-y clear it is of intense interest to me, and that I agree with Professor Turley, so just WHAT is your point?

    Why do you persist in inanity?

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