- The Washington Times - Wednesday, June 18, 2014

The government has granted dozens of trademark registrations that include the words “slant” or “slants,” but when Simon Tam, leader of all-Asian band the Slants, submitted his trademark application, federal officials ruled it was disparaging and rejected it.

Mr. Tam’s request is proving to be a key test case in trademark law, as both bureaucrats and judges grapple with how to impose consistent standards in a country with an increasingly diverse population, an online culture that spurs and magnifies complaints and a robust debate over what’s considered acceptable.

“They never considered it to be a slur until we started using it,” Mr. Tam, founder of what he calls a “Chinatown dance-rock” group, said in a telephone interview Wednesday afternoon.

He spoke just hours after the Trademark Trial and Appeal Board (TTAB) ruled in another key case, revoking a half-dozen trademark registrations held by the Washington Redskins NFL franchise. The TTAB ruled 2-1 that the team name is “disparaging of Native Americans at the respective times they were registered.”

Those who have struggled through the trademark system say consistency is sorely lacking.

For example, “Queer Eye for the Straight Guy,” a television show featuring five gay men who did life makeovers for straight men, was registered, but “Clearly Queer” was rejected. “Permachink” was accepted, but “chink proud” was rejected.

SEE ALSO: CURL: Is the term ‘Redskins’ really offensive?

Part of the difficulty lies in how the government makes its decisions.

Christine Haight Farley, a law professor at American University, said much of it depends on how the person asking for the trademark registration uses it.

She pointed to the case of “squaw,” where the government denied a registration request for using it on clothing but approved its use for ski equipment. Squaw Valley, the California ski resort that hosted the 1960 Winter Olympics, made the trademark more natural in that context, adjudicators concluded.

“That’s an indication of how complicated these decisions can be,” Ms. Farley said.

In a prominent case decided in a federal appeals court last month, Pamela Geller, who gained fame for leading opposition to a mosque being built near the former site of New York’s World Trade Center, lost her battle to register a trademark for the name of her group: “Stop Islamization of America.”

The judges ruled that name “would be disparaging to a substantial composite of American Muslims” who embraced peace.

Thorny trademark cases usually send both sides — the applicants and government adjudicators — scrambling for dictionaries to parse word definitions. Adjudicators also will pore over any material they can find on the applicants, searching for how they use the words.

In the case of Ms. Geller’s group, she argued she was only trying to signal opposition to radical Islam, but the TTAB found writing on her website that, they said, “implicates Islam more generally.” The TTAB also looked at comments posted by users on her website, saying it gave a hint as to how the public viewed the group and its mission.

Having a trademark registration revoked or having an application rejected doesn’t stop a company from continuing to use it or asserting its rights against infringement, but it makes it more complicated to enforce, Ms. Farley said.

In the case of the Redskins, they would likely send cease-and-desist letters to a company that began printing unauthorized Redskins T-shirts. If that fails, they could go to court — but Ms. Farley said that could be dangerous for the team because it could invite an adverse ruling.

In the case of Mr. Tam, being Asian and embracing the word “slants” was the point. Five years after he first requested a trademark registration, and with a case file running into the thousands of pages, he’s still fighting.

He said his case is different from that of the Redskins. For one thing, “the slants” isn’t necessarily an inherent racial slur, and the word slant can mean many different things, Mr. Tam says. That’s not true for “redskin,” which has long been seen as a racial slur.

Just as important is who’s claiming the term. The owners of the Redskins aren’t American Indians, but the Slants are Asian and “we shouldn’t be denied a right just because of our race,” Mr. Tam said.

The trademark office, however, saw it the opposite way. The office stressed the Asian heritage of the band’s members as a key part of its decision to reject the application — while having approved hundreds of other trademarks with either “slant” or “slants.”

“In other words, if I were white, like every other applicant in the history of the country, it would not have been questioned to begin with,” Mr. Tam wrote in a blog posting Wednesday.

His case is pending before a federal appeals court in the capital.

He didn’t take a firm stance on whether the Redskins decision was correct and said that since he’s not an American Indian, he doesn’t think he has the weight to give an opinion.

But he was skeptical of the Trademark Office’s role, saying the point of a trademark was to help avoid confusion in the marketplace — to make sure Coke isn’t Pepsi. Beyond that, he said, consumers should be left to their choices.

“I don’t think that’s where those decisions should be made — that should be made by the general public, and people can choose whether or not to support these organizations,” he said.

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