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.