Trademarks: The Slants Go to SCOTUS

Trademarks: The Slants Go to SCOTUS

I am a big fan of The Slants, not just their music, but their crusade against the U.S. Patent & Trademark Office. The Slants had a gig as the Supreme Court of the United States last week. Well, their lawyers did, even if the band did not.

Several years ago, The Slants attempted to trademark their band name. As frontman Simon Tam noted, they needed the trademark to help get a record deal with a major label. They hired a lawyer, filed their papers, paid the fees and waited (right now it takes about 3-4 months for a trademark application to be reviewed and approved). Except The Slants didn’t get approval because the USPTO said their proposed trademark was disparaging to people of Asian descent. Never mind that the band is comprised of men of Asian descent or the band was trying to change the perception of the word Slants as it applied to people.

Never mind the N.W.A. (which stands for Niggaz Wit Attitudes) was trademarked.

Never mind that there is a registration for, among other things, “Take Yo Panties Off” (Registration 4824028) or “Capitalism Sucks Donkey Balls” (Registration # 4978662) or “Suck Bang Blow” (Registration # 5102977).

So with those kinds of registrations, you can imagine the surprise, Tam, and his bandmates had when told they would not be registered, and on flimsy evidence as well. But to be frank, what is not offensive to some, is offensive to others.

The question for the Supreme Court is really whether the government should be involved in making the decision at all. There are plenty of arguments arrayed on both sides of the law and some pretty heavy hitters in the legal world. But I want to add my meager two cents here.

The government should not be in the business of deciding if something is offensive and the Trademark Office has to have a standard. Part of the problem of a subjective standard such as “disparaging” is that two different trademark examiners could see the exact same record and application as The Slants and reach different conclusions. That is a problem.

While the PTO does have mechanisms to make an argument, trademark applicants should not be required to make an argument on the issue of disparagement. That is a matter for the public and the marketplace. As we have seen with the trademark cancellation proceeding against the Washington Redskins, the public has the wherewithal to make their own arguments.

So what does this mean for businesses? Well, now we are talking a different story. Generally, in the marketplace, it is not a good idea to offend the buying public. But having said that, there is nothing wrong with a business whose brand is premised on offensive behavior from offending people. But a trademark attorney’s job is to look at the proposed trademark and make a recommendation. I do so. But if a client wants to move forward with an application that might be disparaging despite my advice…well it is their option.

In the meantime, The Slants want to get back to business making headlines for their music rather than their legal battle. If they win though, maybe one of the Justices will quote their lyrics. It has happened before.