By Evangeline Cafe
Northwest Asian Weekly
Members of the Portland-based band The Slants create synth-pop anthems that channel 1980s icon Depeche Mode, but with an Asian flair. In one track, “Sakura Sakura,” the band blends techno beats with a Japanese folk song and proclaims in its chorus, “We sing for the Japanese and the Chinese, and all the dirty knees” — a reference to the old, racist schoolyard rhyme.
The Slants, whose members are of Asian descent, have amassed fans nationwide, taking the stage at dive bars, Asian festivals, anime conventions, and even serving on panels to discuss racial stereotypes.
But behind the scenes, the band is fighting a battle with the United States Patent and Trademark Office (USPTO). The office has twice denied The Slants’ request to obtain federal trademark registration of its name, or “service mark,” on the grounds that it is “disparaging to people of Asian ethnicity.”
The band denies that its name is offensive to Asians and is preparing to file a second appeal.
“None of us expected the response that the Office would provide,” said bassist and founding member Simon Young. “Our name has been widely accepted by the Asian American community. Many of our fans are Asian, we’ve gotten a lot of support from the API media, and we’re very involved within the community,” he said.
When Young formed the band in 2007, he sought to create music that would transcend stereotypes. He began thinking of a name that would help the band achieve that goal.
“I was trying to think of things that people associate with Asians. Obviously, one of the first things people say is that we have slanted eyes,” said Young. “I thought, ‘What a great way to reclaim that stereotype and take ownership of it’ — and, in doing so, take away the power from those who try to use it as a term of hate.”
The terms “slant” and “slant eye” permeated American society in the early to mid-1900s. During the World War II era, it was used as a controversial slur to typecast Asian enemy forces abroad and Asian Americans at home.
Young said he and his bandmates could attest to similar experiences of alienation.
“Growing up, we’d have kids singing, ‘Chinese, Japanese, dirty knees, look at these!’ and trying to imitate slanted eyes in a very disturbing and distorted fashion. That kind of became the inspiration for one of our songs,” he said.
Offensive or empowering?
In order to determine whether a mark is disparaging, the Trademark Act Section 2(a) requires that the USPTO consider two factors: the likely meaning of the mark and whether it may be disparaging to a “substantial composite” of the reference group.
In its latest office action, dated Dec. 23, the USPTO concluded that the likely meaning of “slants” is a racial slur referencing the eyes of people of Asian descent. It referenced online dictionary entries defining the term as such. The USPTO also referenced articles that remark that The Slants’ name is controversial.
Moreover, it included articles indicating that in 2009, organizers of an Asian youth conference in Portland canceled a band member’s role as keynote speaker after a sponsor — the Oregon Commission on Asian Affairs — pulled its funding in protest of the band’s name.
The Slants’ attorney, Spencer Trowbridge, states that the USPTO neglected to consider an overwhelming amount of other evidence demonstrating the support of the Asian community. He maintains that the Asian community has in fact “widely embraced” the mark.
“[The USPTO] relied on wiki (user-created online encyclopedias) sources… and I don’t think those speak to how Asians feel about the way The Slants are using the mark,” said Trowbridge. “You’ve got a group of Asian Americans who are clearly spreading a positive message and cultural awareness. What they’re doing is not disparaging.”
Young echoed that sentiment. “They’re taking these kinds of wiki sources, but didn’t even talk to members of the Asian American community,” he said. “For me, it just seems like there’s a disconnect,” said Young.
“This is about the right of a minority group to decide for itself how it defines itself,” Trowbridge said.
In its application and response to the USPTO, The Slants supplied as evidence multiple articles written by Asian American media organizations expressing support for the band. The band also provided declarations written by one band member and two Asian American leaders — Rev. Joseph Santos-Lyons and Mari Watanabe — in support of its position.
It also referenced other uses of the term, including “The Slanted Screen” documentary, “The Slant” television show, and the “Slant Eye for the Round Eye” blog to show that the term is used in ways that promote cultural pride.
However, the USPTO rejected The Slants’ evidence as unpersuasive. It noted that although its members may have laudable goals, the band’s intent is irrelevant in determining whether the name is disparaging.
It also stated that while the declarations were noteworthy, they were not sufficient.
A hard-won battle
Seattle-based intellectual property law attorney Priya Cloutier believes that The Slants will face “an uphill battle” in appealing unless it can gather more evidence showing that the band’s mark does not disparage a “substantial composite” of the Asian community.
She thinks that the best way for the band to support its position is to hire an expert to conduct surveys to gauge Asian Americans’ opinions. “It’s going to be costly, but it would be more thorough and provide a wider sample,” said Cloutier. “I also think that the expert would have to evaluate Asian Americans of all ages and cultures, because different groups would likely respond to the questions differently.”
Cloutier made it clear that while The Slants clearly want federal trademark registration of its name, the band would still be allowed to use its mark, even if lost on appeal. The legal protections, however, would not be as broad.
As The Slants prepare to submit its latest appeal, local Asian Americans weigh in on the issue. “I don’t know that the band’s name is totally politically correct,” said Doug Chin, “but maybe it’s different since it is an Asian band using it.”
Ka Yee, a Chinese American, stated that she does not find the mark disparaging, but acknowledged that opinions might differ. “The band clearly wants to empower others, to bring a message out. But if people misinterpret that message, it can become meaningless,” she said. “If the term still causes some people pain and it’s going to be controversial, it might be worthwhile for the band to think about that,” she said.
Band members, in the meantime, remain optimistic that they will win on appeal.
“Thankfully, we’ve been getting a lot of people contacting us with encouraging words and their support,” said Young. “So, it’s been inspirational to see people rally together and help us with this cause.” ♦
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