An Asian-American rock band called The Slants asked a federal appeals court last week to trademark its name even though the government says it disparages Asians.
The group argued before the U.S. Court of Appeals for the Federal Circuit Friday that it has a First Amendment right to trademark the name because offensive speech or ethnic slurs cannot be censored by the government, Reuters reported. The case is being watched closely because it could affect an appeal brought by the NFL’s Washington Redskins after its trademarks were canceled by the U.S. Patent and Trademark Office on the grounds that the team’s name disparaged Native Americans.
The Slants frontman Simon Tam told Reuters that while most people today believe “Redskins” is offensive, few Asian Americans believe “Slants” is. He said the band, which plays "Chinatown" dance rock, named itself The Slants as a way to reclaim the racial slur.
The band sued after they tried to register the name with the patent agency and it was rejected. Federal law prohibits trademarks which may be considered disparaging.
Their appeal was dismissed by a three-judge appellate panel, leading to a rare “en banc” review by the circuit’s full slate of 12 judges.
During Friday’s oral arguments, the judges appeared evenly divided, with several expressing skepticism of the patent office’s powers to determine what is offensive, Reuters reported.
Judge Kimberly Moore asked what would happen if the government started rejecting copyrights for controversial art or other expressive works as it is doing with trademarks.
Would there be “no more porn? No more crucifixes in urine?” she asked alluding to a controversial photo many Christians found offensive.
The band’s lawyer Ronald Coleman told the judges the First Amendment “requires all speech, no matter how offensive, not be restricted or gate-kept in any way,” according to Reuters.
Justice Department attorney Daniel Terry countered that the law governing trademark registrations does not violate the First Amendment, Reuters said. Its purpose is not “to help people to make a political statement or prevent people from making political statements,” he said.