Asian lawyers mount attack on ‘The Slants’ application

A group of organisations that represent Asian lawyers has backed the US Patent and Trademark Office’s decision to reject a trademark application by US band The Slants, ahead of a court case.

The National Asian Pacific American Bar Association (NAPABA) and the South Asian Bar Association of Washington, DC, along with research institution the Fred T Korematsu Center for Law and Equality, have jointly filed an amicus brief at the US Court of Appeals for the Federal Circuit.

They urged the court to reject The Slants’s argument that the refusal of its application violates its First Amendment rights.

The Slants, an Asian-American rock band founded by Simon Tam, attempted to trademark the name of the band but was denied twice because the applied-for mark was deemed a disparaging term.

A ‘slant’ is a slang word for someone of Asian heritage.

Tam appealed against the decisions to the federal circuit. Although the court dismissed Tam’s appeal in April this year, it then reneged on its decision and decided that it will hear the case before its full set of judges, known as en banc.

The case will be heard on October 2.

In the brief, filed on July 23, the organisations urged the court to “recognise that federal registration of a disparaging mark implicates the government”. They added that the federal circuit must not make the trademark registry a place where “racism is recorded and authorised”.

George Chen, president of NAPABA, said: “Asian-Pacific Americans are all too familiar with the harm, including violence, that often accompanies racial slurs and epithets.

“Although I recognise the band’s intent to reclaim a historically disparaging term, as an intellectual property attorney I also am cognisant that changing the US trademark regulations to allow the registration of ‘The Slants’ could result in the trademarking of offensive terms by individuals and groups without similarly positive intentions.”

Jeffrey Mitchell, partner at law firm Dickstein Shapiro, said: “The NAPABA brief argues that it is perfectly appropriate for the views of particular ethnic groups, as is the case with the mark ‘The Slants’, to be considered before a mark is granted federal trademark registration because registration gives the imprimatur of government sanction.

“According to the NAPABA, protected marks therefore do not have the right to offend. Left unanswered is how large a group needs to be offended before a mark would not be entitled to registration; a slippery slope.”

In a  blog post Tam said that because the brief referred to the term 'The Slants' as a "racial slur" and noted that the band was "wielding its First Amendment rights", the brief had ignored the anti-racism work that the band does.