By Simon Tam
In response to Ed Diokno’s piece, Why Court of Appeals Take on Racist Name is Wrong, I wanted to address a few key points that are often missed when people discuss the Slants’ case. Like many other difficult issues, this isn’t as cut and dry as one would think. When you add in actual trademark law, it becomes even more complex. I’d like to clarify things.
First, the law in question doesn’t affect whether someone can use offensive speech or not. People have always had that right – and in fact, they can get an established trademark while doing so (a trademark is simply an identifier to distinguish itself from others). What they haven’t always been able to get is a trademark registration.
Trademark registrations are issued after a strict set of criteria are met (it isn’t misleading, too generic, can’t be a national flag, etc.), and for the last 70 years, Section 2(a) of the Lanham Act barred registrations that were considered “scandalous, immoral, or disparaging.” However, those terms were never defined. “Disparaging” (which is the provision in The Slants’ case) was supposed to be used only in the most extreme cases, when a “substantial composite” of the referenced group took issue.
That’s important because for the first five years of our case, the Trademark Office didn’t find any Asian Americans who were upset. If you look at court documents, they could only find disparaging content when doing searches for “Slant” that included “derogatory” and the N-word; in others words, it was a biased approach to begin with. They only referenced dictionaries from the 1930’s and UrbanDictionary.com.
We countered with two national surveys (showing 92% of Asian American supported our use), had over 20 Asian American social justice organizations show their support, 20 major Asian American publications, had an editor from the New American Oxford Dictionary write a report showing how “slant” was a reappropriated term, and more – it totaled over 2,500 pages in evidence.
And while The National Asian Pacific American Bar Association (NAPABA), the South Asian Bar Association of Washington DC (SABA-DC) and the Fred T Korematsu Center for Law and Equality filed a joint amicus brief against our case this year, they did so under false evidence shared by the Trademark Office. Since these groups were unfamiliar with the details of our case, they relied on the inaccurate evidentiary record.
For the past five years, members of NAPABA showed broad support – in fact, I presented at their 2015 national conference and had unanimous support there. Also, over the years, we met with over 150 advocacy and social justice organizations and leaders who supported our case. Many protested NAPABA’s amicus brief.
Many forget that the Trademark Office rejected our application because of our ethnicity, not because “slant” is an inherent racial slur (because it isn’t). They said our band was “too Asian” to use it – that’s why anyone could register a trademark for “slant,” as long as they aren’t Asian. Whether you may not agree with our use of the name, I think we can all agree that denying rights based on race is wrong.
Also, the court only struck down the disparagement provision as unconstitutional. There’s nothing about “offensive” trademarks, which are still allowed. “Offensive” content is protected by the government every day in other forms, including copyright law.
The provisions about things being scandalous or immoral still stand. It has nothing to do with whether or not something is “racist,” just “disparaging” (though that definition is vague).
For us, the band name has always referred to our “slant” on life as people of color, and to mock the incorrect stereotype. We’re social justice activists who have been fighting for equity for nearly a decade now. Unfortunately, the Trademark Office mischaracterized this work. But this was about exposing their consistent oppression of minority voices.
I hope you’ll consider taking a look at the other side of the story, not just the misleading headlines and biased court opinion.
We should really think about what this kind of law in place means. Who gets to decide what is “disparaging?” How does this affect the many small businesses, artists, and nonprofits affected by it?
For example, there are registered trademarks for “jap,” “chink,” “oriental,” “slant,” and “slope” (all by non-Asians). In fact, Asian American activists are usually targeted for denial because the Trademark Office doesn’t recognize reappropriation as a justifiable use.
This means the same law could be used to cancel “Fresh Off the Boat” just as easily as “National Association for the Advancement of Colored People” because people may view those terms as unfavorable. “Angry Little Asian Girl” and “Angry Asian Man” could be seen as scandalous or disparaging. “Slant Film Festival,” one of the largest Asian American events in the country, could be jeopardized as well.
The slippery slope argument that this will open the floodgates for hate speech is incorrect and incorrectly assumes how trademark law works.
The American Civil Liberties Union writes, “Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone’s rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, anti-war protesters, lesbian and gay activists and others fighting for justice.”
By upholding the law the Trademark Office is using to oppose The Slants (and all trademarks that on their surface look to be disparaging), it further equips hate groups to dismantle the work of groups like the NAACP. It also puts the sole power of determining what is and isn’t offensive in the hands of trademark attorneys who aren’t trained in cultural competency, equitable practices, or the nuances of poetry, irony, reappropriation, or linguistic changes.
Dealing with hate speech, especially at a trademark registration level, only deals with the symptoms of racist behavior. It relegates “racism” to surface level conversations instead of systems and “reduces issues from substance to appearance” (Frank Wu).
Supporting the Trademark Office’s position to create false protections against hate speech only perpetuates inequity. It preserves a system that is using race as a justification for the suppression of rights. Which, let’s face it, is real racism.