Sunday, October 13, 2013

"You can't use that word, that's our word" (Actually, the Trademark Office Begs to Differ)

There was an interesting collision of pop culture and government policy last month when the band The Slants lost their appeal to register their name with the U.S. Trademark Office (h/t to The TTABlog®).  It's common for bands to register their name with the Trademark Office in order to confirm their right to prevent others from using the same name.  Band names are a valuable commodity, after all, and legal disputes over who "owns" a name can be a nightmare - like a corporate dispute and divorce proceeding rolled into one.  Just ask Sublime, or One Direction, or  The Talking Heads.

What's less common is for the Trademark Office to reject an application because the band's name may be offensive, and what's rarer still is an opinion from the Trademark Office that a band's name is offensive because of the ethnicity of the band members.  By attempting to avoid endorsing a potentially loaded term, the Trademark Office instead stumbled right into the debate over self-expression and ethnic identity.

More below the fold (and fair warning, this post naturally includes references to various ethnic, racial and sexual slurs, all of which are reprinted here for discussion purposes only without any malicious intent) ...

Generally speaking, the Trademark Office doesn't make value judgement about trademarks.  Their primary interests are (a) that you are the first to use your trademark for whatever goods or services you're offering people, and (b) that you are not trying to claim exclusive ownership to a descriptive or generic word.  (For an example of the latter, Subway recently tried to claim it owned the term "Footlong" for sandwiches and found themselves staring down the business end of about a dozen oppositions from Pizza Hut, KFC and others who insist - obviously enough as far as I'm concerned - that "footlong" is merely descriptive of sandwiches.)

But every so often, the Trademark Office refuses to grant a trademark registration on the basis that the trademark contains a naughty word.  In fact, the law explicitly states that a trademark may not include "immoral, deceptive, or scandalous matter", or "matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols."  The Slants fell into the latter category, according to the Trademark Office.  Specifically, they concluded that the term "slants" was "highly disparaging to people of Asian descent."  The band begged to differ and insisted that they're clearly not using the term to disparage themselves as people of Asian descent.

This isn't the first time the Trademark Office had to weigh in on a derogatory term that had been re-appropriated.  As blogger (and trademark attorney for The Slants) Ron Coleman has covered over at LIKELIHOOD OF CONFUSION®, the Trademark Office also recently rejected an application for HEEB (a counter-cultural Jewish magazine) and an application for NIGGA (for retail store and entertainment services, filed by no less than Damon Wayans). 

It's probably no shock that the Trademark Office doesn't want to publish an official certificate of trademark registration with the word NIGGA on it.  Yet, that hasn't stopped about a half-dozen applicants from trying to register variations on the "n-word", including my new favorite trademark (Application No. 76309746, filed on September 6, 2011 for "clothing"):
Be sure to visit our other clothing outlet, BABY YOU DON'T HAVE TO FOLLOW ME AROUND THE STORE ...

On the other hand, there are numerous registrations that include the words "queer", "fag", "homo", "bitch", "slut", "colored", "negro", "chink", "wop", and -- perhaps most infamously at the moment -- "redskin".  So we have a bit of inconsistency on our hands.

What's particularly screwy in the case of The Slants is that, as the band pointed out in their appeal brief, the Trademark Office has granted applications to register the word SLANT at least twice before -- once in connection with "skateboards, water skis," etc., and again for "motion picture film productions," etc.  The Trademark Trial and Appeal Board (TTAB) responded by arguing that, since the band members themselves are Asian, their fans are going to associate "being Asian" with "being Slant-y."  Ergo, it's offensive.

Okay, that's not an actual quote, but the actual quote isn't that much better:
When we take into account the "nature of the identified services," in this case, live performances by a musical band, we are faced with a term that necessarily identifies people, i.e., the live performance.  Thus, those who attend the live performances will necessarily understand THE SLANTS to refer to the persons who comprise the musical band.
Oh, now I get it.  They're Asian!  "Ching chong chang, do-de-do-de-do-do-do-do!"
The TTAB also emphasized that the band has a habit of "touting the slang meaning of 'slants.'"  So, as their attorney put it, "THE SLANTS could be registered as a trademark - just not by Asians."

Of course, the act of re-appropriating slurs is a tried-and-true method of combating bigotry by the targets of those hateful words.  Though, whether one agrees with this approach or not, it seems crazy for the Trademark Office to take a hard position on an otherwise commonplace word that -- by their own logic -- could only be considered offensive when used by a band visibly of Asian descent.  While it's otherwise understandable that the federal government would want to steer clear of endorsing explicitly derogatory terms used with intent to intimidate, harass or offend people, in this instance it seems the Trademark Office is instead trying to protect Asian Americans from themselves.

It's important to note here that this isn't a First Amendment issue.  The Trademark Office isn't prohibiting the band from using their name.  But by denying The Slants' trademark application, it is denying the band the exclusive right to use their name and prevent others from using it without their approval.  As a result, The Slants have lost the full value of their name.  Thus, by refusing to endorse The Slant's re-appropriation of a derogatory word into an expression of unabashed ethnic pride, the Trademark Office has also screwed these proud "Slants" of the full value of their own name.

If there's a sliver of an unintended benefit to this story, the case also generated a bit of free promotion for the band.  Personally, I don't think I would've heard of them if not for this case. And now you've heard of them too, so check them out!

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