Slants vs. Redskins

A court recently ruled that the government couldn't deny a trademark to The Slants, an Asian band. As many have noted, this ruling has obvious consequences for the Washington Redskins' trademark appeal.

The Slants’ Simon Tam: ‘Courts Hijacked My Case’

By Jacqueline Keeler“Major labels will not work with an artist if you can’t protect your creative works and licensing,” said the self-described “racial and social justice” advocate. “We got a rejection letter from USPTO because our name was disparaging to people of Asian descent.”And:Tam and his attorney addressed the USPTO’s logic based on the argument that the band’s use of the term “slants” amounted to re-appropriation of an offensive term by the Asian American community. However, despite this the USPTO rejected it again.And:However, when they took the case to the U.S. Federal Court of Appeals, Tam said, “The judge [Kimberly Moore] said we don’t want to talk about those arguments but about free speech.” ... “And so, at that point our case got hijacked to become this case about free speech,” Tam claimed.Finally:This time The Slants won. “It's no secret,” Tam noted, “that the lead judge in these hearings both in the panel hearing which restricted our arguments as well as the one who wrote the opinions, Judge Kimberly Moore, is a huge Redskins fan.Comment:  Tam's "reappropriation" argument is a little disingenuous. He could've guessed that others would use a variation of his argument. For instance, Dan Snyder could say, "Even if it's a slur, we've made it into something honorable."

Expecting the courts to say only an ethnic group can "reappropriate" a word is naive. It would be flat-out racist to rule that a Native team could trademark "Redskins" but the Washington team can't. Under the law, it has to be both or neither.

Fighting for "Slants" is basically fighting for all slurs to be trademarked and used without restrictions. Even banning all slurs is questionable, as the recent court ruling shows. The courts certainly will not pick and choose between "good" and bad slurs.

And the case "hijacking" aspect, while not necessarily predictable, does happen sometimes. Again, fighting for "Slants" opened the courts to rule however they wanted. They could easily ignore the "minority can reappropriate its own slur" argument and declare it a free-speech issue. I.e., the government can't restrict slurs, period.

Not over yet

With the Slants decision, it's beginning to look as if the Redskins will win their trademark appeal. Most commentators seem to think so, anyway. But the following analysis says the battle isn't over yet.

Washington Redskins Haven’t Won Yet: Why Constitutionality of Section 2(a) is Not Yet Final

By Susan Neuberger Weller and Serge SubachWhat do Washington D.C.’s NFL team, the Redskins, and Mr. Tam’s rock band, The Slants, have in common? Both have enjoyed unexpected victories recently and both have been called “disparaging” by the Patent and Trademark Office (“PTO”). However, while the Washington Redskins have been winning on the football field, many legal and business news websites have also been counting Mr. Tam’s recent success at the Federal Circuit as a major win for the football team. In reality, that issue is far from settled.For more on the Washington Redskins, see "Tolteca Aztec Indian" Supports Redskins and More Boycotts of the Washington Redskins.