The Slants' Trademark Denial Upheld By US Federal Court Of Appeals

24 April 2015 | 12:29 pm | Staff Writer

Bassist Simon Tam has slammed the decision as "absurd"

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US-bred dance-rock outfit The Slants have had the denial of their application to trademark their band name affirmed by the country's Court Of Appeals for the Federal Circuit, though the presiding judge has allowed them to keep using the name for non-trademark purposes.

In a continuation of the band's ongoing struggle to commodify their moniker, which we reported on back in January, Judge Kimberly Moore ruled that the United States Patent & Trademark Office's decision to deny The Slants a trademark should be upheld, but provided "an unprecedented" 23-page appendix of "additional views", many of which actually sided with the band.

According to a post on The Slants' website, in her decision, Judge Moore "questions the constitutionality of Section 2(a) of the Lanham Act, the law which has been used to justify the denial of The Slants' registration".

"She states, 'Trademarks — which are applied to private goods to identify the source of the goods for consumers — are private speech, not 'government speech'," the band wrote. "While she continues to affirm that we can still keep the band name, we have to do so without the substantive benefits of a trademark registration.

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"She also argues that the decision should be considered unconstitutional and that we should be protected by the First Amendment as well."

At the time of the Patent Office's original rejection of the band's registration, Tam described the concession of being able to use The Slants name without a trademark as akin to "saying you can still ride the bus, you've just got to sit in the back".

In their lengthy missive responding to the Court Of Appeals decision, The Slants allege that prosecuting attorneys used less-than-ethical methods in making their case; "for example, the examining attorney applied a clearly biased approach when determining if our name is actually disparaging: he only conducted searches combined with other racial slurs and the word 'derogatory'," the band explain.

"We're deeply disappointed, but not entirely surprised. We've been fighting this battle for nearly six years and we knew that this wouldn't be easy. However, it is terrible that the Trademark Office can easily dismiss the opinions of Asian Americans on the issues without actually talking to anyone in our community."

"The recent decision seems to be politically driven, with no actual consideration of the context or how it is used," they continued. "The Trademark Office inappropriately used my race when making their decision, they cherry-picked definitions in racial-slur databases instead of using contemporary dictionaries, and they misquoted me as well as multiple Asian American organisations that have proudly supported us for nearly a decade now. They should be held accountable for these actions.

"One thing is clear: we will not back down. This is much bigger than our band. It's about the principle. This is about doing what is right — not just for us, but for all marginalised communities who have faced administrative battles caused by a lack of cultural competency."

According to the World Trademark Review, the band is now "considering appealing for a full panel review" of the court's decision.

You can read The Slants' full statement regarding the decision here.