April 30, 2015

The Federal Circuit Sends Mixed Messages: The Slants, Accepted or Not?

by Guest Blogger


The U.S. Trademark Act prohibits registration of marks that disparage, bring into contempt or dispute, or falsely suggest a connection to people, institutions, beliefs and national symbols.15 U.S.C. 1052(a). The Trademark Manual of Examining Procedure contains an entire section about this prohibition.

According to Wikipedia, The Slants are known as the first all Asian-American dance rock band in the world. The Slants have intentionally pressed the race issue in an industry in which Asians have been traditionally underrepresented. According to the U.S. Department of Labor, in 2014 only 3.6% of people employed as independent artists, performing arts, spectator sports, and related industries reported being Asian.

According to The Slants' website, the band's music is deeply seated in the racial identity of the band:

"Frontman Aron Moxley's life began with abandonment. He explains, "I was one of the babies born in Saigon during the Vietnam War. I'll never know my real birthday, let alone find out who my mother is or know if she's still alive." The song "Adopted" illustrates Moxley confronting these feelings, which have plagued him for so long. "This album is more transparent, more sincere. It came from a faulty, but true short love story that ended in numbness fueled by booze and tears. But, ultimately back to a rescue of my own heart."

Years later, the band applied to register THE SLANTS as a trademark for "Entertainment in the nature of live performances by a musical band." The examining attorneys at the USPTO, Mark Shiner and his managing attorney Mitchell Front argued in rejecting THE SLANTS trademark application in that:

"The denotative and connotative meaning of THE SLANTS in this case is inherently offensive[4] and disparaging . . . one of the definitions of "slant" is as a disparaging term to persons of East Asian descent. That definition has been shown to be the only one applicable here. There can be no legitimate dispute that the word "slants" has a sordid history as a racial slur against Asians and that it retains that sting. See Online Etymology Dictionary, "Slant," (noting that the '[d]erogatory slang sense of 'Oriental, slant-eyed person' is recorded from 1943")"

The Slants didn't get any farther with their appeal to the Trademark Trial and Appeals Board. So they went to a three-judge panel (normal procedure) at The United States Court of Appeals for the Federal Circuit, which also agreed with USPTO's refusal to register THE SLANTS. This week, the Federal Circuit decided to review the case again en banc, which is a fancy way of saying "all of the judges." According to the order, the judges basically did an office poll and decided that they all wanted to look at this one again.

So here we are looking at the question: "Do the members of the band THE SLANTS have a right of free speech in calling themselves THE SLANTS that overrides the law prohibiting the USPTO from registering - what the USPTO perceives to be - "Disparaging" trademarks?"

Stay tuned.

In the meantime, if you agree with The Slants, buy a hat or a t-shirt to support their quest.