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Simon Tam of The Slants Speaks With Indian Country Today: Full Interview

ICTMN contributor Jacqueline Keeler spoke with Simon Tam of The Slants to discuss federal trademarks and self-determination in communities of color.

Simon Tam with The Slants interview:

Simon Tam, musician turned reluctant legal activist, has been in and out of the news for the past year, most recently for winning an appeal in a trademark case involving his Asian-American band, The Slants. The band had been denied a trademark under section 2(a) of the Lanham Act because “The Slants” was considered derogatory towards Asian people. This decision by the U.S. Circuit Court of Appeals has been seen in the press as potentially undermining the recent USPTO decision to cancel six trademark registrations for “Redskins” by the Washington NFL team, but as is often the case with complex and lengthy legal campaigns, things are not always what they appear. In a wide-ranging sit-down interview in Portland with Jacqueline Keeler, founder of Eradicating Offensive Native Mascotry.Tam discusses his support for the Change the Mascot Campaign, the race-based connections behind certain legal decisions, the curious positioning of his case in the courts and the press, the free speech versus commercial speech argument and the difference between a trademark denial and a trademark cancellation.

Keeler: Many people in Indian country were dismayed by news of your case. Do you have any practical thoughts to share?

Tam: I've been a long-time supporter of the Change the Name campaign and obviously we have differing opinions but it's a pretty obscure and complicated part of law.

I asked my attorneys this morning when they finally had a chance to call to give me a recap, I asked them, ‘If you were arguing in the other case [Pro-Football Inc. v. Amanda Blackhorse et al.] what would you do and what kind of things would need to be done? Of course, ours is not even final it is still in process. But we have a lot of interesting insight [Tam’s attorneys met with the Pro Football legal team] which I definitely would be more than happy to share with the Blackhorse counsel because as a racial/social justice advocate, I realize that in the rush to break the story a lot of misinformation has been shared by the media.

It's sad, I mean there was TheNew York Times article that was released, and they supposedly had quotes from me. I didn't talk to them and so everything they attributed to me was inaccurate. It's just incredibly frustrating because the band or I become the target for a lot of frustrated thinking, as if we had different intentions than what actually occurred in court or in the last six years of filings.

Could you provide an overview of case? A quick history of your trademark appeal?

This began about six-and-a-half years ago. We had just come from a national tour and our attorney at the time recommended we register a trademark. He said it's very common for bands to do ... and major record labels will not work with an artist if they can't register their name because licensing deals and other things depend on it.

We got a rejection letter from the USPTO probably about two months after we submitted. It said we were denied because our name was disparaging to persons of Asian descent. There is a two-part test for this to determine if something is disparaging. One of the main criteria is that a substantial composite of the reference group find it disparaging. I asked my attorney, ‘Who did they find that was in the substantial composite? Where are the Asian Americans they found?’ They said, ‘Nobody, but they did quote UrbanDictionary.com and posted a picture of Miley Cyrus pulling her eyes back in a slant eye gesture.’

They quoted Urban Dictionary? [Editor’s note: Urban Dictionary is a crowd-sourced, online dictionary of slang words and phrases that is a parody of Dictionary.com]

They hung their legal argument on that source. I was like, ‘Is this a practical joke?’ You can't even use that in a junior high classroom. He said, “No, this is in the actual court document.’ My attorney said, ‘I think we can fight this as they are totally off base. They don't even see that not only are you all Asian but you're widely supported by the community.’

He did some prodding into other cases that faced similar battles like Heeb media, the Jewish magazine. They got the trademark for clothing but were denied for the magazine. Dykes on Bikes is a feminist, lesbian group that was initially denied. They won, but not in court as the USPTO just withdrew the rejection so they didn't actually set precedent.

He said we had to show number one, there is wide support, and number two, they got their definition wrong. So we went to some activist leaders here in town [Portland, Oregon] and they wrote letters of support. We included about a dozen examples of the Asian American press highlighting our work to fight stereotypes about Asian Americans and then we showed examples of us performing at Asian cultural festivals, anti-racism rallies and that sort of thing. So that was about 100 pages or so of stuff. We sent it to them and we thought this is a really strong case. They should have no problems with this.

The trademark office rejected it again. They included Urban Dictionary again, Miley Cyrus, and a couple of other online dictionary sources like The Racial Slur Database [RSDB.org]. They also said I was cancelled as a speaker at the [2009] Asian American Youth Leadership conference. Which was partially true. They said it was due to controversy over our name.

No joke on the court, Benally is making a splash - Photo courtesy of Brian Benally

At that point, the case was horrendously expensive. It was already thousands of dollars. I said, ‘This isn't worth it anymore.’ Why do I need to fight this thing? After looking at a barrage of cases my attorney said, ‘Simon, this is disproportionately used against people from marginalized communities. It's primarily queer communities and people of color who are ruled against.’ The only people who hold trademark registrations for the term Chink are Caucasians. The only people who have been denied are Asians. Same thing with Jap. He said it's actually unfairly applied.

That's when I found over a 100 different organizations in similar situations, thanks to a national survey done by two professors, one at NYU. We found Dr. Ron Butters, a very prominent linguist expert, who wrote the huge report for the Dykes on Bikes case about how the term “dyke” was a re-appropriated term and used for justice. He did a similar effort doing research on the term “slant” and showed how for decades Asian-American activists have been using it as a source of empowerment.

So we turned in a couple thousand pages of evidence at that point basically saying that trademark office was wrong in interpreting that it was disparaging. We had several members of the steering committee of the Asian American Youth Conference write a letter to say we didn't cancel because of the name; it was because we logistically couldn't have a band that year. They sent in copies of the program that showed our band as a prominent sponsor, and then of me keynoting two years after that.

No joke on the court, Benally is making a splash - Photo courtesy of Brian Benally

We gave them everything they asked for. The Trademark Office rejected it again and this time they cited numerous dictionaries from the 1930's. They took distorted Wikipedia articles about me mis-attributing my quotes. They used white supremacists' websites like AsianJokes.com. I didn't know what to do.

We sought out additional help [after their first attorney left private practice] and landed my current attorney Ron Coleman, who is pretty well-known for his work. Then we submitted a second trademark application in 2011.

It was what he called an ethnic-neutral application. In other words, it didn't say we were an Asian band. Nothing in the registration application alluded to the fact that members might be Asian. The Trademark Office assigned the same examining attorney who copied and pasted his previous response. My attorney was like, ‘We got them! He just made a huge legal mistake because all the evidence they cited predated your application by two years.’ They didn't follow the procedural rules. They didn't do a fresh search to see if the name was still disparaging or how it was used in the marketplace. The Trademark Office just used old evidence. And he was like, the only evidence they could find that said slants was disparaging was when they did searches with the word "derogatory" and the "N-word," too. That's the only time stuff came up.

Coleman told us, ‘You're probably not going to win at the Trademark Office, you're probably going to win in federal court and the federal court only cares about procedural and evidentiary issues. This is a procedural error and there is tainted evidence.’ So, our whole legal argument is based on that. The government has granted almost 800 trademark registrations for the term slant and mine is the only one in all US history to be denied for being racist towards Asians.

No joke on the court, Benally is making a splash - Photo courtesy of Brian Benally

Then they [the Trademark Office] went on this long rant where they basically said I was too Asian. They said if people go to your website and they see all these photos of Asians, which is, of course, my band, they are going to automatically think of the racial slur and not any other definition for the word. It was really troubling, as was the case with several other applications. Chink Proud was one. An Asian American activist wanted to make t-shirts that said Chink Proud and he was denied for the same reason, yet Perma Chink, a company owned by whites is allowed. On and on down the line we found out that they were using race to determine if they could make that connection. The Trademark Office doesn't want to deal with re-appropriation. It’s such an abstract concept for them and they don't have the cultural competency or resources to really dissect if something is actually disparaging.

So we went forward. We went to the Federal Circuit [Court of Appeals] based on those arguments but about a minute and a half into the oral arguments, the federal judge [Kimberly Moore] said essentially, we don't care about those arguments. She said, “We want to talk about free speech’ which was just a minor thing is this barrage of paperwork we had. You can actually hear it in the oral hearings where my attorney goes from ’That's not what….okay, we can talk about that.’ [Coleman concurs with this in his blog.] He was prepared to argue procedural issues and the technical nuances of our case but the judge didn't want to hear it--she only wanted to hear about free speech. And even the trademark attorney was caught off guard as well. And so, at that point our case got hijacked to become this case about free speech.

No joke on the court, Benally is making a splash - Photo courtesy of Brian Benally

Which, in all honesty, for me, is fine. I actually agree that censorship doesn't necessarily solve bad or racist speech. It is important to have nuanced discussions. But it was definitely surprising because that's not what our case was built on. And in fact, we lost at the federal court. They turned to the evidentiary record to say once we accept the methods of the Trademark Office we accept everything they did as okay. So, the Department of Justice, the federal court and the Trademark Office basically validated the idea that you can use race to determine something. A week later they vacated their decision, which was this historic thing because I understand they never do that. They did a sua sponti order to vacate. They said we want to hear this thing en banc, or with a full panel of judges. And then they said, you can't argue about anything else other than freedom of speech. The arguments are bound to the first amendment. You can't talk about the evidence or the malpractice or the procedures of the Trademark Office at all.

So, that's kind of what ended up happening: Moving us to just October of this year; then the ACLU, the Cato Institute, and a couple other institutions filed amicus briefs and, of course, an unwanted amicus brief from Pro Football, Inc. Understandably, Amanda Blackhorse's counsel [and other defendants’ Marcus BriggsCloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh] filed one in favor the Trademark Office. They didn't really talk about our case very much, they mainly talked about how this could be problematic.

No joke on the court, Benally is making a splash - Photo courtesy of Brian Benally

I was put in this situation where I knew there were a lot of differences between our case and Pro Football [Pro Football, Inc. v. Blackhorse et al]. For me, it is important to move forward with idea of cultural competency and really focus on who is being marginalized here. So, that's why I continued to talk to numerous organizations, tribal leaders, and activists from many different groups. Not to think they could represent all Peoples, but to say what can I do here? For me, I was put in this battle: Either I fought against a law that was allowing the Trademark Office to deny people based on their sexual orientation or their ethnicities or ... some of my arguments might be potentially hijacked by a racist’s football team.

There are many nuances to trademark law. I talked to my attorney about it today. He said, ‘First of all yours is a first amendment argument theirs isn't; it's a fifth amendment argument about government seizure of property.’ The team spent millions of dollars building up this brand identity. For them, it's government seizure to take that away. That's going to be the crux of their argument. Also our case had to deal with a trademark registration, theirs is dealing with a trademark cancellation. It’s subtle but it's extremely important in terms of what's being argued and what will most likely move forward.

No joke on the court, Benally is making a splash - Photo courtesy of Brian Benally

I've been traveling to 30-plus states this year talking to a lot of law students and activists and other organizations. People oftentimes can't wrap their heads around the whole situation. Professor Christine Farley, who has the most published works out there about Section 2(a) of the Lanham Act, maintains that we need to protect against offensive and disparaging remarks. She's based in Washington DC and she came to the court hearing. I knew she disagreed with a lot of the stuff we were doing. We sat down and talked about it and she's like you were extremely wrong in this case. However, she didn't realize the problems with the record and she's like they were totally off base; ‘Now they are using you so that you will receive the blame for this instead of the football team.’ Because we are on this parallel track and one court case [Pro-Football, Inc. v. Harjo and subsequent filings] has been filed and fought for for decades before ours was even in the picture. Why did the court choose to hear our case first? Because if they could overturn a law and use our case it would be politically favorable to them.

Isn't it tried in a different circuit, so doesn't necessarily apply to the Washington NFL trademark case?

We were in the federal appeals circuit, which is not binding in other federal circuits. Theirs is the 4th Circuit. However, I know it is extremely likely this will influence the decision there.

And if they win, then the Supreme Court could be called on to adjudicate between those two ...

Whether they win or lose the Supreme Court will likely take it up. Because in our case it's still processing even though they have the decision.

You could still face another appeal?

Correct, the Solicitor General will probably file what is called a writ of certiorari or something like that. They have 90 days to do so and I knew this the morning of the ruling, the attorneys the ACLU the other people in the room said, ‘Hey, no matter what happens today even if we win this will go the Supreme Court.’

You feel conflicted about the free speech part, is that what I hear you are saying? I read the arguments by one of the dissenting judges and he said was that the free speech issue is a slightly different issue than the trademark issue ...

That's in Dyk’s dissent, yes, he said that it was commercial speech.

I read from Judge Timothy Dyk’s partial dissent, “The purpose of the statute is to protect underrepresented groups in our society from being bombarded with demeaning messages in commercial advertising ... My answer is that the statute is constitutional as applied to purely commercial trademarks, but not as to core political speech, of which Mr. Tam’s mark is one example. And from Judge Jimmie Reyna’s dissent, “Commercial speech that insults groups of people, particularly based on their race, gender, religion, or other demographic identity, tends to disrupt commercial activity and to undermine the stability of the marketplace in much the same manner as discriminatory conduct. The government’s refusal to promote such speech in commerce is not an effort to suppress free expression, but to mitigate the disruptive secondary effects …”

Sure, and that was what Judge Lourie argued quite a bit in court, too. But the majority, the other judges disagreed. They called the refusal to register a trademark an abridgement of free speech rights that sends a chilling effect because it doesn't only affect for-profit corporations but it affects non-profit organizations, artists, small business and medium business owners who don't have the resources like a certain football team to fight these things. The reality is that Snyder is not even affected by it because he's not paying his own legal fees. The NFL is paying for it which is even more infuriating. In regards to the free speech argument, and this was elaborated on a lot on in the oral hearing, they were comparing it to other intellectual properties, other kinds of speech.

No joke on the court, Benally is making a splash - Photo courtesy of Brian Benally

You can copyright racial slurs, pornographic films, extremely hateful images, that's all protected by copyright. You can actually patent immoral or unethical devices or machinery. The only area of intellectual property law that has a moral or ethical clause is the Lanham Act of trademark speech. So they were saying that intellectual property law should be in line with one another in that regard. I think Judge Moore writes about this, too — it's not saying the government approves of it, just that we recorded that they registered their trademark.

The Washington NFL team filed a brief in October in support of their appeal listing some pretty outrageous trademarks ...

Yes, that was a tactic used by Pro Football. They said here's a list of, I don't know, dozens of the most horrendous, offensive things possible and these are all registered trademarks. Because they are trying to show the inconsistency and subjective nature of the Trademark Office.

I noticed in that list how haphazardly the law was applied. They allowed the trademarking of “The Devil is a Democrat” but not “Have You Heard Satan is a Republican” because it disparages Republicans.

And that was one of the arguments we talked about in our case. The ACLU brought it up. It's been brought up numerous times for like 20 years now that it's extremely inconsistent.

It seems to me they have it backwards as far as the issue of reappropriation. When I give a definition for mascotry or being mascotted the issue is being mascotted by others with no say.

I completely agree that it should be up to community groups to choose their own identities. They should have a say in particularly these things. That was the frustration in our particular case, that Asian Americans were not allowed, we weren't in control over our own destiny. We had this random white judge who made that decision for us and that was the case for many of the cases….

Why, in your opinion, didn't the court simply refine Section 2(a) rather than find it unconstitutional?

It's no secret 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 [for the majority], Judge Kimberly Moore, is a huge Redskins fan. [From her Wikipedia page: “Moore is a big fan of the Washington Redskins. She has four children with her husband Matt, who is a partner at Latham & Watkins LLP. Moore is a Catholic, and attends the same church as Justice Antonin Scalia.] A very outspoken one. She's written papers specifically about the team.

So when you look at the written opinion and why she keeps referring to the football team instead of what was actually at hand, one must consider if she had other motives about this. If she had other motives than reprimanding the Trademark Office and saying ‘You guys have screwed up on procedural issues. You should have granted The Slants their registration.’ Why, all of a sudden, did she take an issue that wasn't even in our arguments and turn it into something else? I mean there could have been ways they could have easily have said ‘Hey, let's take 2(a), let's break it down let's put some things in place,’ but they chose not to do that.

Professor Farley says the Lanham Act is important. Her argument is that we need to have standards, either a working dictionary or something that we can actually enforce. They could have reinterpreted that in a different way but they chose not to do that. It's fascinating watching the legal process unfold before my eyes because it's the most frustrating thing in the world.

Jacqueline Keeler is a Navajo/Yankton Dakota Sioux writer living in Portland, Oregon and co-founder of Eradicating Offensive Native Mascotry, creators of Not Your Mascot. She has been published in Telesur, Earth Island Journal and the Nation and interviewed on MSNBC and DemocracyNow and Native American Calling. She has a forthcoming book called “Not Your Disappearing Indian” and podcast. On twitter: @jfkeeler