Simon Tam didn't think it would be a big deal when he applied for trademark protection on the name of his band, The Slants. It was 2011, and the band—a dance-rock group whose members are all Asian-American—had been getting some buzz. A lawyer buddy told Tam he'd do the application, saying the process would take a couple hundred bucks and six months, tops.
"Things turned out a little bit different," Tam told Reason several years later, on the eve of Supreme Court oral arguments over his trademark case.
Since 1946, the federal Patent and Trademark Office (PTO) has been charged with blocking the registration of trademarks that "may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." It was on those grounds that the agency denied Tam his trademark.
The San Diego–born musician, whose father was raised in the Hong Kong area and whose mother is from Taiwan, says the name of the band was a lighthearted (and hardly unprecedented) effort to reclaim an old anti-Asian slur. Their discography includes Slants! Slants! Revolution (2009), The Yellow Album (2012), and their latest, an E.P. titled The Band Who Must Not Be Named.
Since that initial PTO denial, the case has slowly, painfully worked its way through the legal system. Early on, an administrative review board conceded that the band's name was "an attempt not to disparage, but rather to wrest 'ownership' of the term from those who might use it with the intent to disparage," but rejected the claim anyway, finding that the usage was still "objectionable."
In 2015, a federal appeals court sided with Tam, noting that "the First Amendment protects even hurtful speech." As the majority explained, "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 speech likely to offend others." The PTO defended its decision by saying that Tam's speech wasn't being restricted—he can call the band whatever he likes, he simply can't have a trademark on that name. The PTO also argued trademarks are akin to government speech. But as noted in a brief filed on the band's behalf by the Cato Institute, Reason Foundation (the nonprofit that publishes this magazine), and others, that argument was pretty weak, considering that the list of currently registered trademarks "includes such hallowed brands as 'Capitalism Sucks Donkey Balls' and 'Take Yo Panties Off.'"
In January, shortly after Tam sat down with Reason TV's Meredith Bragg, the Supreme Court heard The Slants' case, now known as Lee v. Tam. The justices appeared skeptical of the government's argument, pushing back on the law's vagueness, its circular reasoning, and its uneven application, suggesting that the Court might overturn the 71-year-old rule standing between The Slants and their trademark.
Reason: Why did you form the band and how did you come up with the name?
Tam: Back in about 2004 I had just moved to Portland, Oregon, and I dropped out of college to tour in a punk rock band. But during that time period I found myself missing home, my culture, my family and friends, and so I started importing a bunch of movies from Hong Kong. Around that time period someone said, "Hey, you should really check out this movie called Kill Bill." I missed it because I was on tour, so I bought it the day it came out [on video]. I'm watching this movie in my apartment and there is this really iconic scene. This woman named O-Ren Ishii, who walks into this restaurant with all these mafia members behind her—for most people this is just another trademark Quentin Tarantino scene, but for me it was like an epiphany. I just had to stop there, pause the film and thought, "Why is this, like, different for me?"
And then I realized it was the first time that I had ever seen an American-produced film that depicted Asians as cool, confident, and sexy. I was like, "Wow, the art form that I love—music—has the same issue." There are no Asian Americans on the cover of Rolling Stone, on the billboard charts, on Spin, and on MTV back when they used to play music videos. I thought, "Something's got to change." I wanted to not be the token guy in the band anymore. I wanted to start my own band and that way just kind of celebrate that culture, and that's when I got the idea of starting this Asian-American project.
I started asking people, "Hey, what is something that you think all Asians have in common? We're trying to think of a band name here." And they told me slanted eyes. And I thought this was really interesting. Number one, it's not true. But number two, we can use it to talk about our slant on life as people of color. And number three, it sounds like the kind of a band Debbie Harry would front. So I was like: This is perfect. And then we became The Slants.
Why was it important to trademark the name?
We had been touring for a while and we were already doing pretty well. We did a couple of national tours. NPR's All Things Considered did this story on us because we were busting into anime conventions and playing for this geek army. Around that time period, a friend of mine who is an attorney said, "Hey Simon, I really think you should get a trademark on your band name. It is really important for bands to do who are going to the next level." He said, "You know, let me handle it for you, it'll only be a couple hundred bucks and in about six months this whole thing will be over with."
"I should have the same rights as anybody else. Just because they happen to think that I am inappropriately using a word doesn't mean they have the right to stomp out my business."
Things turned out a little bit different. Almost a decade later, here I am fighting for this right. It is interesting because when people are talking about trademark rights, they keep saying things like, "Well, Mr. Tam can still use the name of the band if he wants." But the reality is that it affects musicians more than they think. When you don't have a trademark registration it is way more difficult to get a record label offer or licensing deals or other things that are critical for an up-and-coming music business.
The bottom line is that I should have the same rights as anybody else. Just because they happen to think that I am inappropriately using a word doesn't mean they have the right to stomp out my business.
Did you think, when you came up with it, that the name was going to be provocative?
The name has never been provocative. I actually thought it was kind of funny. We can flip the slur around and do a positive, self-empowering kind of thing with the word. That being said, I have never been called a "slant" in my whole life. I've been called many other things. Asian Americans have been using the term slant for decades already. The biggest, or one of the biggest, film festivals in North America, as far as Asian-American films go, is called the Slant Film Festival. And there is Slant magazine. It is kind of this cool, hip thing in our communities. So I was like, "It's no big deal."
The U.S. patent office denied your trademark. Why?
When I first got the call for this I thought it was a practical joke. My attorney calls me and he says, "Hey Simon, we have a problem. The trademark office actually rejected your application." And I said, "Did I fill something out incorrectly? Did I do something wrong?" He said, "No, no, all that is fine. They said your name is disparaging to persons of Asian descent." And I took a second and said, "Well, do they know we are of Asian descent?" He said, "I think so." And I was like, "I didn't even know there was a law against this. What does it actually say?" He says, "Oh, that a substantial composite of the reference group has to find it disparaging." So I said, "We just did this tour with 100 punk shows across America with Asian-American festivals. Who did they find who said it was disparaging?"
And he said, "Nobody. But they did cite urbandictionary.com, they found an old Wikipedia entry, and they showed a photograph of Miley Cyrus pulling her eyes back in a slant-eye gesture." And I was like, "Are you serious?" He says, "I'm looking at Miley Cyrus right now."
That's messed up. So we decided to appeal. We thought they were completely off-base but we found out over the years, over and over again, they continued to use really questionable evidence just because they want to justify their decision even though they knew it was wrong.
Did you think this fight would lead you to the United States Supreme Court?
I don't think anyone can imagine that you would end up at the Supreme Court just because you chose to name your band The Slants. There are all kinds of other bands out there—the Dead Kennedys, the Sex Pistols—and those have never been an issue. NWA has a registered trademark. On the racism Richter scale, I would say The Slants is probably a 0.5 and the NWA is probably a 9 or a 10, yet they get it and we don't. It's not right for the government to choose winners and losers.
What have your fans thought of the case?
We've had this incredible outpouring of support over the years, not only of our own fans and community but also other people who have fought and lost against this law. There's this incredible feminist hip-hop group out of Denver, Colorado, called Harpoontang. There's this all-girl punk band in Seattle called Thunder Pussy. There was a Japanese restaurant who was denied a trademark registration because they named the restaurant Fuku, a Japanese word for luck, because the government said it looks too much like an obscenity. Ironically they allowed trademark registrations for French Connection UK or FCUK, which looks like the same obscenity. So it's all over the place.
It is incredibly frustrating when you can't predict. I went through all the steps outlined. I filled out all the applications. And more importantly, we paid all these fees, every single round. All of a sudden we are denied because of a misunderstanding. Even if we win at the Supreme Court—even if all eight justices say, "You know, The Slants were right all along"—we don't get any of our money back for those court fees and court printing or the legal fees that we had to encounter. We just get a trademark registration. Is that really justice?
"I don't think anyone can imagine that you would end up at the Supreme Court just because you chose to name your band The Slants."
Who gets to decide what's offensive?
I think offensiveness is up to the individual person. Cultures and language shift over time. If we registered The Slants 50 years ago, the government probably wouldn't have cared because they could care less about Asian Americans to begin with. If we did it 50 years from now maybe they won't care, especially if the makeup of the government changes. Frankly, that's bad law.
Your Supreme Court hearing is on Wednesday. If you lose, what does it mean for you and the band? If you win, what does that mean?
On a personal level, it would be devastating to see almost a decade of my life just thrown away because the government just doesn't get it. To know that the government can continue to use somebody's race or their sexuality against them. That's just terrible. To me the stakes are pretty high on a personal level, because if we lose we just sealed it that we just allowed the government more control over others' identities. That is frankly horrific.
That's why most people are on our side. People both on the far right as well as the far left understand that this is an issue that is not partisan. This is an issue that deeply affects Americans, because if this trademark law stands at the Supreme Court level, then copyright laws are in danger. All of a sudden the government can say, "Hey you know what? If it's OK to decide we don't like something and we can strip away the rights in this area, what's to say we can't do it in this area?" Patents can be in danger as well. It's a really dangerous notion when you give that amount of power over to censorship.
The Washington Redskins, who are fighting over a racially loaded trademark as well, filed an amicus brief in your case, right?
They did, yes. They actually filed multiple briefs over the years. One of them was that they wanted to try and usurp our case. They wanted to consolidate their case with ours and be the ones to argue before the Supreme Court. The Supreme Court swiftly denied that.
A number of media organizations have put forth the idea that there are strong parallels between your case and the trademark case that the Redskins are going through.
There are definitely a lot of similarities between our case and the Washington Redskins' case from a legal perspective, especially when you look at it from a First Amendment perspective. If this law is truly an abridgement of the First Amendment, that means we should have our rights just as they should have their rights, just like any group should be able to kind of name whatever they want as long as it fits the rules and procedures of the trademark office.
"The stakes are pretty high on a personal level, because if we lose…we just allowed the government more control over others' identities. That is frankly horrific."
That being said, there's also a number of pretty big differences as well. Ours has to do with a trademark registration. Theirs has to do with a cancellation—Fifth Amendment versus First Amendment. That's pretty significant, because they've invested billions of dollars over multiple decades into their franchise and to build their brand, and so for the government to cancel that, it's like seizing their property investment. That's a pretty big deal from the perspective of anyone, because that means all of our trademark registrations are in danger. You may be on the good grace of the government now but who is to say 10 years from now, after you have invested your whole life savings, that they change their minds about you. So theoretically they can seize your property as well.
Then there's also the fact that redskin has an inherent meaning that for hundreds of years has referred to Native Americans, some might argue positively and some might argue negatively. Slants or especially The Slants has not. The reality is most people don't use the word slant. They use slant-eye if they want to use it derogatory, but even so it's pretty obscure, even in the '30s and '40s. Most people understand that slant means, like, a diagonal line or an angle or something like that. They do not necessarily associate that word with Asian Americans.
There are a couple of similarities and a couple of differences and I think the media loves to combine them because they like the headlines—they like short, concise thoughts about what it means—but they don't really like to unpack how complex it really is.
Why didn't you just change the name?
I'm extremely stubborn, I guess. For me, this whole fight has not been just about the band name and our right to access the trademark registration. When I found out what the government was doing and how they were doing it, how they were using it to suppress speech and how they were trying to take rights away from my own community, I decided that was not right. So all of a sudden it became about principle. When I believe they are violating the values of our country and violating my own values, I decided that had to be stopped, no matter the cost.
And it did come at a cost. I had to take second and third jobs to pay some of these legal fees. I'll never get back those seven years of my life in terms of the time spent hitting the ground doing work for this case. But at the end of the day, if we win, we don't just win the trademark registration for our band. We win rights for small business owners, nonprofits, other artists, people who have been slammed with this law themselves.
This interview has been edited for length, clarity, and style. For a video version, go to reason.com.