Spend your Monday lunch hour chatting with a rock star while earning CLE/CPE credit. Register for the webcast “A Name Worth Fighting For: How Naming My Band The Slants Got Me To the Supreme Court,” featuring rocker Simon Tam, presented by the NCBA CLE Department. Members of the NCBA Intellectual Property Law, Litigation, and Sports & Entertainment Law sections enjoy a discounted rate.
Tam, founder and bassist of The Slants, will talk about how his fight with the U.S. Patent and Trademark Office over his band’s name led to a U.S. Supreme Court case. The webcast discussion runs from noon to 1 p.m. on Monday, Sept. 18. Tam will answer audience questions and speak frankly about racism, legal troubles and his incredible stories of playing in the world’s “first and only Asian-American dance rock band.”
Here’s a preview of Monday’s conversation, based on a Q&A with Joyce Brafford, NCBA’s Distance Learning Manager for CLE.
Q: Can you tell us why you chose to call your band The Slants, given its nature as a racial slur against people of Asian descent?
A: When deciding upon my band name, I asked my non-Asian friends what they thought all Asian people had in common. They would all immediately say, “slanted eyes.” I always thought was interesting because: 1) It isn’t true – not all Asians do have slanted eyes, and 2) Asians aren’t the only people on earth to have an epicanthic fold, or “slanted eye.” More importantly, I thought that The Slants could represent our perspective, or slant on life, as people of color while paying homage to Asian-American activists who had been using “slant” in a clever or re-appropriated way for about 30 years.
To be clear, “slant” has never been considered a racial slur against Asian-Americans. Usually, people used the term “slant eye,” but even at the height of this use in the 1930s and 1940s, it was still relatively obscure. So when we began performing for Asian-American festivals across North America, we didn’t receive any push back at all. Our community understood what we were doing and widely supported it.
Q: How did you feel when you learned that you couldn’t register your trademark for The Slants”?
A: When I learned that I couldn’t register my trademark, I thought it was a practical joke. The full weight of the government’s refusal was hinged upon some tenuous evidence: A citation from UrbanDictionary.com, a joke wiki-site, was used to determine disparagement. They couldn’t find a single Asian-American who found our name disparaging so they instead used a wiki website, quoted anonymous posts on white supremacist websites, cited a false article suggesting that a concert of ours was cancelled due to controversy (despite being corrected by the steering committee who led the event), and photos of Miley Cyrus pulling her eyes back in a slant-eye gesture.
It was ludicrous that I had to be having this kind of debate when the clear position of power was being held by the examining attorney at the U.S. Patent and Trademark Office: He could easily waive away significant evidence that we brought (which included independent national surveys, dictionary expert reports, letters from prominent Asian-American advocacy organizations, and nearly every Asian-American media source in the country lauding our work), as if he had a magic wand. It was extremely degrading begging the government to consider the viewpoint of our community and it cost significant resources at every level of the appeal. When I looked and saw dozens of other applications for “slant” leading to registration and mine being the only one in the country to be refused under 2(a), it was even more disheartening. And when I learned that the only reason why they interpreted the name of my band to be disparaging was because of our ethnic identities (saying it was incontestable that “the applicant is of Asian descent and part of an Asian band … this the association”), I knew that something had to change.
Q: How has being one of the most recent plaintiffs to defend private speech affected your view of First Amendment protections?
A: Fighting this case has taught me the value of free speech. In our society, we’re often presented a false dichotomy of free speech vs. social justice. However, I’ve come to understand that protecting civil liberties is supporting social justice, because the cost of free speech is usually paid for on the backs of the marginalized. Those who hold positions of power and influence don’t engage with laws in the same way that the overburdened do – we certainly don’t have the same resources, nor the luxury of time to be able to wade our way through extensive legal processes. At the end of the day, we need to consider a new framework of justice – that of social equity, not equality. To put it simply, we need to provide more options to those in our society who have the fewest.
Q: Your story can be interpreted as a story about property rights, a journey to protect free speech, or even a fight against unnecessary regulation. It can be tempting to oversimplify your story for the sake of advancing a worldview. But a nuanced approach gives a much richer picture. How would you suggest lawyers use your story to better explain the nebulous points involved in intellectual property rights, the First Amendment or the role of government?
A: I would suggest that attorneys read the lines between legal briefs. It’s so easy to treat things as cold case law, a battle of the legal merits on each side of the argument while having that viewpoint colored by our own prejudice. In other words, it is our human tendency to look at the existing field and make determinations from there. However, that’s not how one should pursue justice. One should first begin with the kind of world that we’d like to see, regardless of existing possibilities, then work out the steps to get there. Do certain legal actions and interpretations lend themselves towards that world? Or do we need to consider more context over how different people engage with the law to make shifts for our own position?
For example, consider the case most often compared to my own – and in most instances, overshadows the nuance of The Slants case: that of a pro football team. While there was certainly wide public support over the campaign to change their name by way of cancelling their trademark registrations, we have to reconcile the fact that their name was never in any danger. Trademark rights aren’t granted by the government, they’re earned through use. So if our goal was to have their name changed, cancellation wouldn’t necessarily have accomplished that. At best, the financial damage would have influenced [Washington Redskins owner Dan] Snyder to do so but the larger cost would be even greater government power to strip the rights of trademark owners any time they found their registrations to be in offense … including marks who may have direct political messages. And that’s very disturbing for the marketplace of ideas, especially for marginalized groups who might have less popular positions.
Instead, we should consider what was happening with 2(a): inconsistent interpretations on nearly identical marks and misinterpretations with long and expensive appeals processes to do the inefficiency of the system. And part of that meant allowing the Trademark Office to deny registrations in a way that considered the ethnic identity or political views of the applicant … which is extremely troubling. Is that the point of the trademark registration system, to regulate how “nice” the market should be? Consider this: If the government truly cared about fighting racism while using the Trademark Office to do so, why didn’t they begin by cancelling the registrations of the KKK, Stormfront, or other known white supremacist groups? Why did they instead wage that battle against an anti-racist Asian American band?