Intellectual Property Attorney

“The Slants” Deemed Disparaging And Not Entitled To Trademark Registration

As reported by Bloomberg BNA, a recent decision of the Trademark Trial and Appeal Board has affirmed the refusal of registration of “THE SLANTS” as a trademark for “entertainment in the nature of live performances by a musical band.”

The Slants are a dance rock band founded in Portland, Oregon in 2006. All five members of the band are of Asian Pacific Islander descent, and the band is well known for fighting racist ideas and stereotypes.

One of the band’s members filed a trademark application for “THE SLANTS” in 2011. The U.S. Patent and Trademark Office initially rejected the application pursuant to Section 2(a) of the Lanham Act, which prevents registration of a mark that “consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.” The Trademark Examiner determined that “THE SLANTS” could not be registered because of its use as offensive slang as a disparaging term for a person of East Asian birth or descent.

The Applicant appealed the refusal to register to the Trademark Trial and Appeal Board (the “Board”), which recently affirmed the decision. On appeal, Applicant argued that the term has not been used as a racial slur since the 1940’s. In addition, registration should be permitted because he, along with other members of the Asian American community, are seeking registration not to disparage, but rather, to wrest ownership of the term from those who might use it with the intent to disparage.

In rejecting Applicant’s arguments, the Board noted that the question is not whether Applicant finds the term objectionable, but rather, whether a substantial composite of the referenced group find the term objectionable. Moreover, in finding the term to be objectionable, the Board found that the likely meaning of the term in the context of its use was disparaging, despite the fact that Applicant had good intentions. The Board cited the following quote from the band as evidence that the term was used in connection with its disparaging meaning: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them. We’re very proud of being Asian – we’re not going to hide that fact.” Accordingly, the term was deemed disparaging and not entitled to trademark registration.

We recently posted a blog regarding the ongoing controversy as to whether the trademark “REDSKINS” is offensive in connection with its use as the name of a National Football League franchise. One wonders, in view of changing cultural norms as regards disparaging terms, whether a new application for “REDSKINS” might meet a similar fate as the application in this case.

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