You [The Slants] are trying to use the Asian community to promote your band for your own benefit. The general public is not going to get the social statement that you are claiming to make. Instead the name just comes across as saying it is ok to mock Asians using a common racist stereotype. The Trademark Office was right not to put its stamp of approval on this type of activity. Saying that the Trademark office is discriminating because if you were not Asian it would have been ok is disingenuous. Every case has to be looked at on its facts. Given the context you can’t deny the racist connotations behind the name. The question is not whether you have a legal right to use the name, instead the question is whether you get to have the benefit of a US trademark when the name sends a racist message. The answer is no. (end)
— Mark (online response)
Simon Tam says
While I appreciate the spirited response, I believe that it was done so without a full consideration of the facts – and, as you mentioned, “Every case has to be looked at on its facts.” So lets examine some of them.
You claim that “You [The Slants] are trying to use the Asian community to promote your band for your own benefit. The general public is not going to get the social statement that you are claiming to make.” However, I believe that’s a statement that was issued without actually knowing our work. In fact, we’ve been quite active in the Asian American community, working with advocacy groups, internment camp survivors, student groups, and more to do things like raise over $1 million for charitable causes, increase API voting rates, conduct workshops on racism, advocate for laws that affect Asian Americans, and more. Most of the press on the band from the general public has been on this understanding – in fact, our story on changing stereotypes about Asian Americans has been profiled in numerous publications, including NPR’s All Things Considered, Angry Asian Man, Pacific Citizen, and more.
“Saying that the Trademark office is discriminating because if you were not Asian it would have been ok is disingenuous. Every case has to be looked at on its facts. Given the context you can’t deny the racist connotations behind the name.” No, I wish it were true, but the Trademark Office is using our ethnicity as the “context.” Their exact statement was “it is incontestable that the applicant is the founding member of a band comprised of Asian Americans.” The law isn’t against racist or racial connotations, it’s specifically on disparagement.
Finally, you state “The question is not whether you have a legal right to use the name, instead the question is whether you get to have the benefit of a US trademark when the name sends a racist message.” We’ve never claimed that the case had to do with the legal right to use the name, but rather, if in its process the Trademark Office was using discriminatory practices in its process, whether or not ethnicity should be used in the decision making process, that the Trademark Office had severe issues with its evidentiary record, and that in denying the trademark registration, it was an abridgment of free speech rights. Trademark registration isn’t just for the benefit of the applicant, it’s also for the commerce (so that consumers can’t be deceived by similar marks. Most people get that part confuse, or accidentally mixup what trademark benefits are and how they differ from copyright issues, etc. After all, content with “racial slurs” are protected by the government all the time through copyrights (film, books, music, and so on). Socio-political speech and social commentary, even when disagreeable, also fall under that category as well, which is why the Federal Circuit is re-examining our case.
You might find the re-appropriation of language, symbols, or icons disagreeable, and that’s perfectly fine (it’s a complex social process that not everyone understands), but before making broad assumptions about our work, trademark law, or the nuances of this case, and especially before making assumptions about what the Asian American community supports or doesn’t support, you should take a comprehensive look at the information available at hand. You said it best yourself: “every case has to be looked at on its facts.” I completely agree, which is why I believe the Trademark Office is wrong in this case, especially when they deliberately lied about the evidentiary record.
If you’re wanting to know what they lied about and the proof of the distortion, we have a detailed response on our site here: http://www.theslants.com/the-slants-vs-the-united-states-trademark-office-update/
I’m also happy to send you copies of expert reports, independent surveys, and the other facts of our case, which now tops 6,000 pages of evidence.