Update, Dec. 22, 2015: The Court of Appeals for the Federal Circuit has ruled in favor of Simon Tam and The Slants, arguing that “their name… is private speech and therefore protected by the First Amendment,” NPR reports.
Simon Tam’s band is in a dispute. But it isn’t a battle of the bands. He’s fighting for his group’s name.
In early October, Tam comes to Washington to embark on the next step in his prolonged legal tussle with the U.S. Patent and Trademark Office. For six years, he’s been battling the federal agency, which has blocked him from registering his band’s moniker because it’s been deemed offensive.
Tam founded The Slants, a pop-rock group from Portland, Oregon, whose members are all Asian-American. When the patent office rejected his applications to trademark the band name on the grounds that “The Slants” disparages people of Asian descent, the bassist felt more than a little confused.
Tam decided on the band name after asking a friend to identify common Asian stereotypes. The friend suggested slanted eyes, and The Slants were born.
“It sounded like this ‘80s new wave band that maybe Debbie Harry or someone would front,” Tam says. “But [I thought] maybe we could use it in a way to engage people, to drive conversation and talk about it from our perspective.”
At the Court of Appeals for the Federal Circuit this fall, a panel of judges will review whether Section 2(a) of the Lanham Act — which bans “disparaging” trademarks — violates the First Amendment.
“I’ll be there and I’ll be watching, but I won’t be allowed to speak, which is the deeply ironic thing about it,” Tam says, laughing. “You have some white attorneys arguing before some white judges about what’s offensive to Asian people, and the only Asian in the room will not be allowed to talk.”
Before Tam comes to Washington, I spoke to him about his battle over The Slants’ name and why he thinks trademark rules disproportionately impact minorities.
This interview has been edited for length and clarity.
Bandwidth: Why did your band form? Was it just because you wanted to make music or did you have a certain goal in mind?
Simon Tam: I had the idea for the band for a couple of years before I even had a lineup together. The whole thing was really because I saw a lack of Asian-Americans in the entertainment industry. When you think about Asian-American artists, most people draw a complete blank, especially when you think about Asian-American bands. That was even more the case eight years ago when I first started.
How has the Asian-American community responded to the band’s name? Has there been support?
The response has been absolutely incredible. Since Day One, we would get these emails and letters and care packages sent to us from Asian-Americans just thanking us for existing, for giving voice to their perspectives and struggles. Asian-American media, promoters — they’ve all been just absolutely incredible.
“I was like, ‘Who did they find that was offended by this?’ My attorney said, ‘Technically, nobody, but they quoted UrbanDictionary.com and it included a photo of Miley Cyrus pulling her eyes back in a slanted eye gesture.'”
What does “Asian-American” mean to you?
I think the term “Asian-American” is a distinctly political one. It means nothing in terms of geography to me because there is this certain social assumption that when you say Asian-American, people think Chinese, Japanese or Korean, and they kind of forget India or Cambodia or Laos or Mongolia. They forget that it incorporates dozens and dozens and dozens of completely different cultures, foods, languages and histories. And that’s one of the limitations of the term.
The term used in the ‘60s and ‘70s was generally “yellow,” and sometimes people used the term “brown,” but the term “Asian” was developed by the U.S. Census office. And the community just decided, “Hey, we’re just gonna take it. We’ll organize under this banner and use that to create some community power.”
When we use the term, I’m generally pretty broad about it. We include all kinds of Asians, Pacific Islanders, South Asians and so on, because I think that no matter what ethnic identity we bring to the table, we can all attest to similar types of racism and injustices we experience.
When did you first start trying to trademark the name? Did you expect to get pushback?
Our attorney first recommended in 2009 that we register our band’s trademark. Technically, brands or bands or get a trademark through use, so if you create a product, you are starting to develop a trademark. What we’ve been trying to get is an official trademark registration. Basically, the government says, “OK, we acknowledge that you’re the ones to use this, and you get certain rights.” You get a more significant level of protection.
So when we applied in 2010, my attorney said, “This is a very simple process. It’s just going to cost you a couple hundred bucks. The whole thing will be over with very quickly.” We never expected this to happen. In fact, I still remember the phone call I got from my attorney. He called me up and said, “Hey, we’ve got a problem with your trademark application. You were rejected because they said your name is disparaging to persons of Asian descent.” I paused for a moment and asked, “Do they know that we’re of Asian descent?”
We had just come back from this North American tour where we played hundreds of Asian-American cultural events. We played for diplomats from China, Japan — so I was like, “Who did they find that was offended by this?” My attorney said, “Technically, nobody, but they quoted UrbanDictionary.com and it included a photo of Miley Cyrus pulling her eyes back in a slanted eye gesture.”
So we decided that we needed to fight this — that they were totally wrong. Little did I know it would send me on this course that would last over half a decade.
“Anyone who registered a trademark for ‘slants’ was not a problem as long as they’re not Asian. That’s extremely problematic.”
At any point, did you consider just changing your band’s name?
There was a time in the beginning, shortly after we initially fought back against the trademark office. Being in court started costing thousands of dollars, and very quickly I said, “I don’t know if this is worth it.” But my attorney said this was a really big deal, because over the years, the law has been disproportionately applied to minorities, and that this was bigger than the band. He offered to work pro bono. With every attorney that has come on since, they work pro bono.
How has this law been disproportionately applied to minorities?
When we filed our second application — because we actually have two — we decided to present an ethnic-neutral application. In other words, we didn’t say anything about it being an Asian band. They went ahead and swiftly rejected it again. Basically, they gave us the same examining attorney who copy-and-pasted his response.
So we said, “You’ve registered a trademark for ‘slant’ hundreds of times in U.S. history. This is the only case in U.S. history where the government decided that ‘slant’ was disparaging to Asians. So what is it about this case that makes it different from all 800 other cases that have come before you?” He said, “It’s obvious that the applicant was of Asian descent.” In other words, we were too Asian to use the term. Because of our ethnicities, people would automatically associate the word with a racial slur and not any other possible dictionary definition. And that’s the fascinating thing. We can’t change the context of our band — that’s our actual race. Anyone who registered a trademark for “slants” was not a problem as long as they’re not Asian. That’s extremely problematic.
[Ed. note: Asked whether the Patent and Trademark Office’s rejection of Tam’s “ethnic-neutral” application actually demonstrates a nondiscriminatory policy, Tam says it’s the opposite: The examining attorney carried over information from the band’s first application, depriving The Slants of the reconsideration to which they’re entitled and ultimately rejecting them on the basis of their ethnicity.]
Why is it important to reclaim slurs for marginalized groups?
It’s effective. It’s a way to create social change. Reappropriation is an extremely powerful experience, and there are a lot of psychological studies about this. Whenever a group reclaims a particular term, there’s a shift in power from the dominant group to the oppressed group.
I think it’s also important because we should control the terms and how we’re addressed. If we decide it’s an in-community term only, we should be able to decide those boundaries of who should and shouldn’t use language in reference to our particular groups. It’s also important because it creates this general sense of social consciousness about our issues.
The term “slant,” unlike most racial slurs that you hear, is a neutral word. It’s not a disparaging term on its own. It meant something for hundreds of years, and then some racist took it by using the term “slant eye.” I would argue that we have every right to go back to the original definition if we want. Racists don’t have a right to use the English language for their own purposes. We should be able to redefine the process and get rid of that history.