Self-described "Chinatown dance rock band" The Slants is comprised solely of Asian-American musicians, but their trademark was denied because it's "disparaging" to... Asian-Americans. Bob speaks to Simon Tam of The Slants about the battle that put him on the same side legally as the owners of The Redskins.
Thanks to Sarah Jeong and Parker Higgins for writing about The Slants in their newsletter about intellectual property, Five Useful Articles.
Bob Garfield: Kyle Wiens is CEO of I-Fix-It. Now, on the subject of what you own and what you don’t own, what if that thing is... your name? Is that yours to do with as you please? The answer to that one is: not necessarily. Consider the case of the Portland dance-rock band The Slants. Asian-American musicians who have taken their name from an ethnic slur and worn it with pride. But when they tried to register the trademark, the US Patent and Trademark Office said, “The Slants?” No no no no no no. So the band sued.
Last month they lost their appeal at the Federal Circuit Court, but it turns out the fight’s not over yet. Simon Tam is bassist and founder of The Slants. Simon, welcome to OTM.
Simon Tam: Thank you.
Bob Garfield: Alright, why did you choose the name The Slants for the band in the first place?
Simon Tam: Honestly it came from a conversation I had with a good friend of mine. When I first had the idea for starting an all-Asian band. So I said, what's the thing that you think all Asians have in common? And without skipping a beat they said, slanted eyes. And I thought that's really interesting, because not only does it sound like some kind of cool, new-age band that Debbie Harry would be in, but it could also kind of be our slant on life, our perspective as Asian-Americans, and at the same time, pay homage to decades of work by Asian-American activists, who've been reclaiming slant in a positive, appropriating manner.
Bob Garfield: I'm curious why you need to have The Slants be a registered trademark, what's the business purpose behind that?
Simon Tam: In addition to the normal benefits like being able to protect your brand, merchandise... in the music industry it's extremely important because there are licensing agencies and there are record labels who actually refuse to do business with acts who do not have a registered trademark, or who do not have a name that can be have a registered trademark.
Bob Garfield: But it turns out, that the Trademark Office isn't exactly hip to the identity politics and the politics of language. They say, The Slants are a reference to your Asian roots, that it is a common slur, and therefore against the very explicit rules against disparagement in a trademark.
Simon Tam: It shows that they have no actual connection to the Asian-American community. We've actually done them a favor by doing independent national surveys and supplying a 70-page Word document from one of the top linguistics professors in the country explaining the history of the term slant, how even in the 1930s and 40s at its height of usage, it was never really used as a common slur. Nearly every single major dictionary publisher has actually removed the racial meaning from its list of possible definitions, because it really isn't used that way.
Bob Garfield: Wait wait wait. Let me see if I understand that right. You're saying that because the word slant, is most commonly used to describe a diagonal, or bias, or any of the other dictionary definitions, that the trademark office's objections are irrelevant?
Simon Tam: Yeah they're kind of off-base. They're basing their information off an assumption, not actual usage.
Bob Garfield: Dude! How can you argue to the Trademark Office that it's an inoffensive word when it's very offensiveness is what put you on to it to begin with?
Simon Tam: I would actually use the words of the Trademark Office themselves. They said intention doesn't matter. The only thing they care about is how the respective market responds to it, and whether the reference group is actually offended or disparaged by it. And survey after survey, they've shown that the Asian-American community overwhelmingly embraces our use of the term.
Bob Garfield: What are you proposing, that there be an irony exemption to the disparagement rule?
Simon Tam: I don't think it's the place of the Trademark Office to legislate the dictionary. I don't think they have the resources, nor the competency to do so. For example, Queer Eye for the Straight Guy, they got the green light they have a registered trademark. But there's a T-shirt that tried to put out T-shirts called Clearly Queer, and they got denied. It's the same word. What's the difference? One's going to be on a T-shirt and one's going to be on a TV show. In terms of our particular trademark, the only person that's ever been denied for being disparaged is me, an actual Asian. And their rationale was that, well we understand the term slant means so many different things, but they said that when you combine the word slant with our imagery, in other words, photographs of Asian on our website, which... that would be us, that people would automatically associate it with the racial slur. If I fired everybody in my band and replaced them with white people? Then I could get a registered trademark.
Bob Garfield: This is so confounding. Do you think that your situation was exacerbated by the fact that at approximately the same time you were applying for trademark protection for The Slants, the Washington Redskins, who are not a Native American organization, are trying to protect their trademark?
Simon Tam: With the most recent court order from the Federal Circuit, I think now we're kind of caught up in those particular politics because the recent order to vacate from the Federal Circuit, basically said that we don't care about the nuances of your argument about cultural competency and procedural issues; the only thing they want to talk about is the Constitutionality of the Lanham Act, the law that the Trademark Office is using against us. So in other words what they're saying is, we just want to use your case, to argue about this law. Which is really another way of saying, if this law gets repealed we get to blame this Asian band on the Washington Redskins getting their trademarks back, and not the Redskins themselves or this court.
Bob Garfield: Are you concerned that you are going win your case and then open a floodgate of slur-based trademarks that are an ongoing nightmare for ethnicities of every stripe?
Simon Tam: People kind of have this concern, they're like well you don't want government backing these kinds of groups. But the reality is that if that were the case, then why not support banned books, or why not get rid of copyright protection for films, or books, or music that might contain slurs in them. If we're going to be a country of free speech, we actually do need to protect all forms of speech, even if we find them disagreeable.
Bob Garfield: Well Simon, I understand you're about to go on world tour, so Godspeed, and thank you for joining us.
Simon Tam: Thank you for having me.
Bob Garfield: Simon Tam is the bassist and founder of the trademark outlaw, The Slants.