“The Slants” Refused Registration by the Trademark Trial and Appeal Board (TTAB)

Regardless of the intent of the use of the name “the Slants” to “take back” the ethnic slur by an Asian-American rock band, the U.S. Trademark Trial and Appeal Board (TTAB) on 26 September 2013 refused registration of the mark. The TTAB reasoned that the mark could not be registered as it is a disparaging term under the federal trademark statute (In re Tam (PDF), T.T.A.B., No. 85472044, 9/26/13).

In 2011, Simon Shiao Tam (real name Simon Young), founder of The Slants, an Asian-American dance-rock band of Portland, Oregon, filed an application with the U.S. Patent and Trademark Office (USPTO) to register the term “The Slants” as a trademark on the principal register for “entertainment in the nature of live performances by a musical band.”

A trademark examiner refused registration under Section 2(a) of the Lanham Act, 15 U.S.C. §1052(a), which prohibits registration of a mark that “consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.”

Tam requested reconsideration. The USPTO renewed its rejection. Tam appealed.

In the TTAB opinion, Administrative Trademark Judge Karen Kuhlke cites numerous definitions from dictionaries and other online sources that indicate that “slant” is a derogatory term for East Asians, originating in a stereotype of the appearance of the eyes of people from certain ethnic groups.

The board also cited to the entry for the Slants on Wikipedia, which indicated that the same originated in an ethnic slur. The Wikipedia entry also quoted Tam as saying: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them.”

The board rejected Tam’s argument that registration had been illegitimately refused solely on the basis of his racial background. Tam noted that registrations existed incorporating the term “slant” for other goods and services.

In ruling against Tam, the TTAB reasons that Section 2(a) requires an examination of the use of the relevant term in the context of the marketplace. The board refers to the marketing collateral of The Slants and explains that – in its view, their website promotes the “likely meaning” of the mark to mean people of Asian descent by displaying the wording “THE SLANTS” next to a depiction of an Asian woman. Further, the TTAB reasons that the applicant appears to actively seek to associate his services with this meaning as a way to embrace this slang meaning and the stereotype represented by THE SLANTS.

According to the TTAB, Tam’s argument amounted to his saying that because he is ethnically Asian, his intentional adoption of a disparaging term should not be interpreted as disparaging. The board compared the situation to that in In re Heeb Media LLC, 89 U.S.P.Q.2d 1071 (T.T.A.B. 2008), in which the board refused registration of a trademark incorporating the disparaging term “Heeb.” The TTAB states that the “Applicant cannot claim ownership and redefine the term without a use that acknowledges the meaning that must be overcome.”

In the opinion, the TTAB determines that in the context of the entire Asian-American community — as opposed to just fans of the band — the term would be considered disparaging, regardless of the band’s intent in using it.

“The fact that applicant has good intentions underlying his use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable,” the TTAB opines.

While some may disagree with the outcome of federal registration, the TTAB emphasizes that a refusal to register the term does not prevent the band’s continued use of it. Thus, Tam’s free speech rights are not infringed or curtailed. The board affirms the refusal to register the mark “The Slants” under Section 2(a).