California Intellectual Property Blog


Supreme Court to Decide Whether Offensive Names Can be a Trademark

supreme_courtSan Diego – The Slants, an Asian American rock band from Portland, Oregon, are taking their case to the Supreme Court which will decide whether the band can trademark its name. The band’s trademark application to the U.S. Patent and Trademark Office was refused because the trademark office found that it is an offensive term.

The clash between free speech and trademark protection has drawn wide attention in part because the Washington Redskins football team is locked in the same dispute. According to Dan Snyder the owner of the Washington Redskins, “Ninety percent of Native Americans feel that the name isn’t offensive and shouldn’t be changed.” Snyder claims that the team was named after William Dietz who coached the inaugural Boston Redskins team 80 years ago, before it moved to Washington. Dietz was a Sioux Indian, and the team was named in his honor, “out of respect for Native American heritage and tradition.”

The band name the “Slants” stems from an offensive term referring to Asian Americans related to their eyes. The trademark dispute arose when Simon Tam, the founder of the band, chose the name the Slants to co-opt and make fun of a slur directed at Asians.

When Tam and the Slants appealed the Trademark Office refusal, a federal appeals court reviewed a 1946 law that tells the government to reject trademarks that “disparage… persons, living or dead.” The judges then declared that the law violated Tam’s right to free speech. Lawyers for Tam said the trademark office has been inconsistent in how it has applied the law. A well-known musical group of the 1980s and 1990 was N.W.A., which fans knew stood for Niggaz Wit Attitudes. The Slants make the argument that while such terms may be used in a disparaging way, the group’s fans did not interpret the name as disparaging.

Simon Tam and his band members are claiming they are not disparaging Asian Americans. The band claims they are doing the opposite. Instead, they think they are appropriating a slur and using it as a badge of pride.

The results of the case will likely be relevant to the Washington Redskins case, and may set the new precedent for similar trademarks.


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