Marginalized Groups and the Battle to Reclaim Racial Slurs – as a Registered Trademark

​By: Taylor Washington
 
A Portland-based dance-rock band, the Slants, is headed to the Supreme Court to appeal the rejection of a Federal trademark registration due to its classification as a “racial slur”. The trademark, the Slants, seeks to unite the Asian American members of the band and their fan base by “capturing a common characteristic” of slanted eyes.
 
Nonetheless, the United States Patent and Trademark Office, citing Section 2(a) of the Lanham Act, is seemingly unimpressed – good intention or not. Section 2(a) of the Lanham Act of 1946 defines a number of trademarks ineligible to receive federal registration, including those that “disparage”. The 2-part test for determining whether a mark is disparaging is as follows: (1) the meaning of the mark must refer to “identifiable persons, institutions, beliefs or national symbols,” and (2) the mark must be disparaging to a substantial composite of the referenced group.”
 
However, it is the “substantial composite” component that seems to create the largest road block. In defense of their mark, the Slants, presented the results of surveys created by university professors – the results of which concluded that few members of the Asian and Pacific Islander community found “the Slants” to be disparaging.
 
Regardless, the patent’s office rejected this defense with various attachments. These included “a screenshot of user-submitted content from Urban Dictionary, whose top definition for ‘slant’ read, ‘a derogatory term used to refer to those of Asian descent. More accurately, it tends to refer to anybody with slanted eyes.’” Furthermore, they also included a Wikipedia article with a “list of ethnic slurs”, in which slant-eye/slant is included, as well as arguments in an internet forum and comments on a blog post.
 
However, the government’s blatant disregard for the tested findings leaves the Slants with no other option but to lean on their good faith and constitutional rights. They first argue that the registration should be approved because it is a denial of their First Amendment right of freedom of speech. Further, if for no other reason, their trademark is worthy of protection due their adoption of the mark as a “positive term of self-reference that promotes cultural pride and recognition.
 
The outcome of the case is unsure; however, one thing is clear. The USPTO has a deeply-rooted reluctance to grant federal trademark registration to marks that are “disparaging”. In the name of Section 2(a), many have sought trademark registration and received rejection due to their disparaging nature. For example, the USPTO has claimed that the trademark “Dykes on Bikes” disparages lesbians, that “Khoran” wine disparages Muslims, and that the “Redskins” football team disparages Native Americans.
 
In the face of anecdotal evidence, tested findings, and world-wide acceptance of the trademark, the USPTO continues to stand firm in the decision to reject “disparaging marks”. Leaving me to believe, that the strongest defense remaining is regarding the ethnicity of the trademark applicant.
 
Should federal trademark registration depend on the ethnicity of the applicant? Should there be a distinction between those who are members of the marginalized group and those who are members of another group? There are many questions left unanswered that require feedback.
 
“For many people, there’s a fundamental difference between an Asian-American dance-rock band called “the Slants” and a football team owned by a while man, featuring no Native American players called “the Redskins.” Will the court agree?
 
Needless to say, the fight for trademark protection of seemingly “disparaging” marks is a battle that is important to both the public and the government. Thus, unless you’re ready to hit the stage and rock out with a unique argument other than anecdotal evidence, tested studies, or good faith; I would recommend heading back to the studio for some edits.
 
Link: https://www.nytimes.com/2017/01/17/magazine/should-we-be-able-to-reclaim-a-racist-insult-as-a-registered-trademark.html