“I’ve been a long-time supporter of the Change the Name campaign,” said Simon Tam of Asian-American band The Slants, fresh off a major legal victory in his fight to trademark his group’s name. Tam is referring to various grass-roots efforts to change the racist name of the Washington football team, a cause that may be negatively impacted by the same ruling that benefited Tam.
“I realize that in the rush to break the story a lot of misinformation has been shared by the media,” he said.
On December 22, 2015, the Washington NFL team appeared to get an early Christmas present. In the case In re Tam, the U.S. Court of Appeals for the Federal Circuit ruled 9 to 3 that the Trademark Office cannot deny registration of a trademark even if it is considered derogatory. Headlines in the press announcing the ruling invariably linked The Slants’ case as helping billionaire Dan Snyder’s football franchise to regain cancelled trademark registrations for the ethnic slur “Redskins.”
Shortly after the ruling was made, Tam agreed to an interview with Indian Country Today Media Network to share his perspective and his solidarity with the Native American community, and how he feels about the decision potentially helping the upcoming appeal by the Washington Redskins, Pro Football, Inc. Vs Blackhorse et. al.
Read the full interview.
In the full-length Q&A, Tam recounted the practical and legal steps his band took to register a trademark for its name during what came to be a six-year struggle.
“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.”
The Trademark Office’s rejection quoted UrbanDictionary.com, a crowd-sourced online dictionary of slang words and phrases that is a parody of Dictionary.com, and included a photo of white pop star Miley Cyrus pulling her eyes back.
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.
To persuade him to appeal the second rejection, Tam’s legal team pointed out that section 2(a) of the Lanham Act prohibiting the registration of derogatory trademarks was being unfairly applied to the very minority communities the law was meant to protect.
“The only people who hold trademark registrations for the term ‘chink’ are Caucasians,” said Tam. “The only people who have been denied are Asians. Same thing with Jap … the government has granted almost 800 trademark registrations for the term ‘slant’ and mine is the only one in all U.S. history to be denied for being racist towards Asians.
“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.
“The Trademark Office doesn't want to deal with re-appropriation,” he said.
In 2011, the band submitted a new “ethnic-neutral” application for The Slants. They hoped that by excising all mention of their own ethnicity they might get more fair treatment. When the USPTO rejected the appeal, its lawyer addressed the racial issue, opening the door to a new appeal based on procedural violations.
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.” Tam's lawyer was there to argue about procedural problems with how their trademark registration was handled. He said that even the Trademark Office’s lawyer was surprised, too.
“And so, at that point our case got hijacked to become this case about free speech,” Tam claimed.
They lost again. The court accepted the methods of USPTO, validating that the Trademark Office could use race to deny a trademark registration. However a week later the CAFC vacated their order, an extremely rare occurrence, and the case was scheduled to be heard en Banc (before all judges of the court). Tam and The Slants expected and received the support of the ACLU, but also won an unwelcome ally — the Pro Football Inc. which filed an amicus brief.
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. 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. … 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.”
“The court hijacked my case,” Tam said. “My goal was to develop culturally competent laws and marginalized identities are being silenced because the government is not culturally competent or being lazy. Who bares the cost of this? It’s always marginalized groups.”
Tam’s attorney has pointed out that his appeal differs from Pro Football’s as his was a First Amendment argument and theirs is a Fifth Amendment argument about government seizure of property. He also said: “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.”
Tam is hoping for a more nuanced discussion of what this means, and is emphatic about his support for Change the Name. “I think what they did is phenomenal,” he said. “What they did is highlight the injustices. More people are talking about the issues than before. More people are championing Native issues.”
Read the full-length interview.
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