In a decision with national implications for free-speech protections, a federal appeals court Tuesday said members of Portland-based Asian-American band The Slants have the right to trademark their name even if people find it offensive.
The 110-page set of opinions by the full Federal Circuit Court of Appeals said parts of a 1946 law barring the Patent and Trademark Office from registering "disparaging" names are unconstitutional because they intrude on the private expression of free speech.
"Many of the (trademarks) rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities," the court wrote. "But the First Amendment protects even hurtful speech. The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks."
That stance, reached in a 10-2 vote, marks a milestone after several rounds of legal battles by the band's bassist and founder, Simon Tam.
It thrusts the issue onto the doorstep of the U.S. Supreme Court, said Tam's attorney, Ron Coleman. It also reverses a ruling earlier this year by a panel of appellate judges that upheld the U.S. Patent and Trademark Office's refusal to register The Slants' name more than six years ago.
The Slants
Band founder and bassist Tam was inspired for the band's name by a scene in the movie "Kill Bill" that showed an Asian man walking into a bar looking cool and tough. Tam, tired of stereotypes that showed Asians as kung fu masters or geeky geniuses, started recruiting for a rock band.
Tam liked the way "The Slants" sounded -- it reminded him of an '80s new wave band. The name could be a nod to slanted guitar scales or a reference to the slanted perspective he had living as a person of color, he said.
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Tam has said he named his band The Slants in part to re-appropriate a word that has long been seen as a racial slur targeting Asians. That message resonated with the full appellate court, which noted the band's willingness to draw from "childhood slurs and mocking nursery rhymes" when making statements.
"With their lyrics, performances, and band name, Mr. Tam and his band weigh in on cultural and political discussions about race and society that are within the heartland of speech protected by the First Amendment," the ruling found.
Tam called the decision the "best present ever" on Twitter, mentioning advocates and legal advisers such as the American Civil Liberties Union.
In an interview, he said he learned of the court victory almost as soon as he woke up Tuesday. Even if it might be temporary, he said, "it's monumental for artists and for activists."
"I didn't start a band to go to court. I started a band to tour," Tam said, mentioning the thousands of dollars he's paid in court costs alongside the pro bono help from attorneys. "Do we fix our bus? Or do we pay this court fee? But at the end of the day, we've got to go by our principles."
Tam called the fight with the patent office "ironic," given that other government agencies have embraced the band's anti-racism message -- inviting the group to appearances at federal prisons and training sessions with officials at the Pentagon.
He also acknowledged his case may affect trademark arguments from parties who aren't interested in cultural re-appropriation, such as the NFL's Washington Redskins. The NFL filed a brief supporting Tam.
But Tam said it was more important to protect artists, immigrants and small-business owners who don't have money or time for a court fight.
"I don't think we should write laws around football teams or people who abuse speech," he said. "We need to protect free speech to allow for better and more meaningful conversations."
The appellate ruling noted that this case marks Tam's second attempt to trademark the name The Slants.
Tam's original application included hundreds of pages of supportive paperwork to bolster the band's claim that Asian-American advocates understood the band's use of the name and that they didn't find it offensive. It was rejected.
When Tam reapplied in 2011, the application omitted references to the band's ethnicity, leaving just one clue: Tam's last name. The same federal examiner ruled against the band again, citing Tam's heritage as an unavoidable tie to the use of the word "slants" as a slur.
By then, Tam had connected with Coleman, an intellectual-property attorney who'd already taken an interest in trademark disputes over potentially disparaging names.
And neither Tam nor Coleman let up after the patent office's refusal, keeping up the legal fight.
"It's not merely about the right of haters to use hateful speech," Coleman said. "We're trying to move beyond that. We're trying to be more adult, to be more sophisticated and to also not depend on government to protect us from words, but to be masters of our own destiny."
Coleman said he was struck by the patent office's willingness to register the name of biker group Dykes on Bikes, which was also an attempt to reclaim a word seen as a slur.
"Why was re-appropriation OK for one sort of disparaing words but not for other sorts?" Coleman said.
But that fight seemed to stall in April when a panel of appellate judges ruled against Tam and his attorneys. They said his First Amendment rights remained intact because he could continue using the name even if he couldn't register it as a trademark. But they also urged the full appellate court to take up the case.
The full court sided with Tam. It cited other slur-containing names that had been registered by the Patent office, calling the office's decisions "seemingly arbitrary."
The court also signaled that it understood the wider implications of its ruling.
"We recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities," the ruling says.
"Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others," it continues. "Even when speech 'inflicts great pain,' our Constitution protects it 'to ensure that we do not stifle public debate.'"
Casey Parks and Laura Gunderson contributed to this report.
-- Denis C. Theriault
503-221-8430; @TheriaultPDX