Justices Set to OK Offensive Trademarks?

      More than 5 million Americans tune in every Tuesday night to watch ABC's second-season sit-com Fresh Off the Boat and laugh at the antics of the show's newly arrived Asian American immigrant family. The Huangs epitomize all the stereotypes of Asian American culture: a father so desperate to assimilate that he opens a western steakhouse restaurant; a tiger mom driven by ambition for their three children; and kids already imbued with American culture and oblivious to their Taiwanese roots.
      The show, based on the coming-of-age memoir of the same name by the chef and food personality Eddie Huang, has been received with a measure of bemused gratification among Asian Americans for the program's realistic if satiric depiction of the immigrant experience. Even as popular culture accepts Fresh Off the Boat, however, a hitherto obscure government board is balking at an Asian American dance rock band's decision to perform and market themselves under an ethnic slur: The Slants.
      Simon Tam was a young and ambitious San Diego-born musician in 2006 when he formed what he now calls the world's only all Asian American dance rock band. Tam called the band The Slants to declare ethnic pride and reclaim the slur from the trash heap of bigotry. Now, a decade later, Tam and his bandmates are before the U.S. Supreme Court in a closely watched free-speech case. They want to force the federal government's Trademark Trial and Appeal Board to register the band's name as a protected trademark entitled to legal safeguards against misuse or misappropriation by others.
      Justices across the ideological spectrum appeared to favor Tam's plea during the spirited hour of arguments in Lee v. Tam last week [Jan. 18]. In an only-in-America coincidence, the government's appeal is brought in the name of Michelle Lee, the Asian American director of the U.S. Patent and Trademark Office (PTO). The government fared badly in the arguments, but the trademark board deserves better than it got for its well-meaning effort to dissociate the government from a term that still today is offensive to a significant number of Asians and Asian Americans.
      The PTO's trademark board was not seeking to prevent The Slants from using their name, the government's lawyer emphasized to the justices, only to withhold the benefits that come from official registration. But two civil liberties groups from opposite sides of the political spectrum — the American Civil Liberties Union and the Cato Institute — joined in support of the band's argument that the government's refusal was an improper burden on free speech under the First Amendment.
      The trademark board was enforcing a provision of the Lanham Act, the statute that Congress enacted in 1946 to codify trademark law and provide a national system for registering trademarks. The act's section 2(a) prohibits the PTO from registering a name that may "disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." Unfortunately for the government, the PTO's enforcement of the anti-disparagement provision has been anything but consistent or logical. Those shortcomings lend strength to the band's argument for ruling the provision flatly unconstitutional rather than directing the trademark board to reconsider the case.
      The disparagement provision went all but completely unenforced until the last decade or so. As the band's lawyers noted in their brief, trademarks registered in the 1950s and 1960s included many examples unpalatable by current standards: Black Sambo candy, Honey Chile food, Him Heep Big Trader auto dealer, and Wampum Injun corn chips. They argued that the approval of trademarks such as these reflected the proper view of the disparagement provision as applicable to individuals but not to ethnic groups as such.
      Representing the government, deputy solicitor general Malcolm Stewart tried hard to sidestep free-speech concerns. The Slants could sing what they want and call themselves what they want, he contended, but the trademark board could set "reasonable limits" on access to what he called "a government program." Congress could reasonably have decided, he argued, that ethnically disparaging terms hindered interstate commerce. Later, Stewart argued that offensive trademarks lowered the United States' standing in other countries.
      Justices from left to right were not buying it. From the liberal bloc, Elena Kagan suggested that the First Amendment prohibits the government from limiting access to a government program based on viewpoint. Ruth Bader Ginsburg asked whether it mattered that the band was using the name not to "disparage" but only to "describe" their Asian heritage. Stewart answered that the trademark examiner had found sufficient evidence that the term was still widely considered to be offensive.
      From the conservative wing, Samuel A. Alito Jr. suggested Stewart was "stretching the concept of a government program beyond the breaking point." From the ideological midpoint, Anthony M. Kennedy suggested the trademark board's position was out-of-date if nothing else in an era of trademarked T-shirts and other apparel used unmistakably for expressive purposes. Kennedy hesitated, however, after the band's attorney, New Jersey intellectual property expert John Connell, acknowledged that his argument would require registration even of an "absolutely outrageous" trademark.
      Watching the case closely are the owners and fans of the Washington Redskins, the National Football League's perennially underachieving franchise in the nation's capital. The trademark board canceled the Redskins' registration on ethnic disparagement grounds. The team's appeal is on hold at the Fourth U.S. Circuit Court of Appeals awaiting what seems likely to be the Supreme Court's decision favoring the Slants sometime late this spring.