A federal appeals court ruled Tuesday that the government can’t refuse to register trademarks that might be considered disparaging or offensive.
The ruling from the U.S. Court of Appeals for the Federal Circuit sided with an Asian-American rock band called The Slants, based in Portland, which has spent years trying to register the name. The U.S. Patent and Trademark Office had refused to give it legal protection on the ground that it disparages Asians.
The Slants’ drummer, Tyler Chen, lived in Clark County from summer 2005 to spring 2015, when he moved to Seattle. He worked at Clark College for 10 years, beginning in 2004. Chen was a communications consultant and secretary senior in the Office of Instruction, an information technology specialist and a member of the Cultural Pluralism Committee, the International Education Committee and Campus Climate Taskforce.
The court’s decision will “continue to help fuel our work in arts and activism,” according to a statement on The Slants’ Facebook page from bandleader Simon Tam, who formed the band in Portland in 2006. The band is getting ready to release a new album, “Something Slanted This Way Comes,” and has plans to tour Asia.
“This is a historic moment,” wrote Tam, who named the band in order to transform a racial slur into a term of empowerment. “Not only for our band who has been fighting the legal system for nearly six years — but for all Americans, especially artists, nonprofits, and small-business owners who have wrongfully had their free speech rights abridged. Free speech is absolutely essential for having nuanced discussions of race and identity.
“We just took down a 70-year-old racist law, which I’d say is more punk rock than almost anything else ever done by most so-called rockers,” he wrote.
Writing for a nine-judge majority, Judge Kimberly Moore said the First Amendment protects “even hurtful speech that harms members of oft-stigmatized communities.” She said a federal law barring offensive trademarks is unconstitutional.
“Words — even a single word — can be powerful,” she wrote. “Mr. Simon Tam named his band The Slants to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.”
The government must now decide whether to appeal the case to the Supreme Court. In her opinion, Moore acknowledged the ruling could have a broader impact on other cases.
“We recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities,” Moore said.
Tam parsed how this case is different than one involving the controversial name of the Washington Redskins football team: “While this certainly isn’t hurting their case, it doesn’t guarantee a win for them, either. We were dealing with trademark registration, they are dealing with trademark cancellation. … We should not let the fear of a football team regaining trademark registration justify the suppression of rights for other groups.”
The football team is suing a group of five Native Americans challenging its trademark registrations. The Native Americans, led by Amanda Blackhorse of the Navajo Nation, petitioned the trademark appeal board because they asserted that “Redskins” is a slur and deeply offensive to Indians.
Tam has long argued that the band chose the name as a statement of racial and cultural pride.
“This band was created specifically to celebrate Asian-American culture and kind of share that perspective — our slant on life, if you will,” Tam said.
“It feels kind of unreal,” he said. “Not only that we won, because it’s been six years in the making, but that because of our band we in some way have expanded First Amendment rights for millions of Americans.”
The Associated Press contributed to the report
