Trademark Offense

How I named my band "The Slants" and got into trouble with the government.

Oregon State Penitentiary

A few years ago, my band, the Slants, was invited to perform at the Oregon State Penitentiary. To many, sending an all-Asian American dance rock band into a prison with a significant neo-Nazi population seemed like an invitation for disaster. However, I didn't question the decision until we actually showed up and were handed bright-orange vests to wear over our clothes. Our singer asked if it would be okay to take them off mid-concert, since our suits and vests could get quite warm.

“Sure,” the guard said, “but if an incident occurs, the orange vests let the sentry towers know who to avoid shooting.” Got it: keep the safety gear on.

We continued through security with significant precautions at every step. There were bars and armed guards everywhere. The clanging of the doors would echo loudly for a while every time one was opened or shut. It was a place designed for containment, not comfort.

Eventually, we stepped onto a large field surrounded by concrete walls—a place called “the big yard.” The stage was set up at one end with a thin line of plastic police tape stretched across the front—the only thing separating us from nearly two thousand convicted criminals. We'd been scheduled to perform the year before, but a large riot had put the place on lockdown, so they'd postponed the concert. This fact didn't do much to settle my nerves. I admit I was making assumptions about the kinds of people who are sent to maximum-security prison: murderers, rapists, and drug dealers.

The Slants perform at Oregon State Penitentiary

The Slants performing at Oregon State Penitentiary. Photo: Oregon State Penitentiary

 

While we played, a small crowd assembled in front of the stage, and a larger one walked around the yard, getting the only hour of outdoor time they'd have for the day. As we launched into our cover of “Paint It Black,” hundreds of prisoners jumped and cheered.

At the end of the concert, a small group of shirtless white men approached the police tape. Several of them were completely covered in swastikas and white pride tattoos. A large man in front came up, towering over me. He seemed nervous as he handed me a piece of paper and asked for an autograph.

“It's for my daughter,” he said. “I want to tell her that I met the band.”

He went on: “I know I have these tattoos, and I know what you must be thinking. I've made a lot of mistakes in my life, and they're mistakes that I don't want my little girl to make.” He said he wanted to show that he could learn, that he could change his heart and mind even if he couldn't change what was stained into his skin.

That concert was one of the most powerful experiences of my life. I went in with all kinds of assumptions, but those changed when we talked with the prisoners.

I started the Slants nearly a decade ago because I wanted to change people's assumptions. I remember watching Quentin Tarantino's Kill Bill on DVD in 2004. I paused the film during the iconic scene of O-Ren Ishii and her gang of Crazy 88s walking into a restaurant—not because of the gore or the soundtrack, but because I realized it was the first American-produced film I'd seen that depicted Asians in a cool and confident manner. The film industry was bad, but the music industry may have been worse: I couldn't think of a single mainstream Asian American music artist.

I wanted to change that with the Slants, the world's first and only all-Asian American dance rock band. Not only did we create our own brand of '80s-inspired synth pop, but we also got involved with social justice: we toured the country fighting stereotypes about Asian Americans, leading workshops, raising money for charities, and sharing our culture through our music. Letters of support from marginalized communities poured in.

During this time, our attorney recommended that we register the trademark on our band name, something that's commonly done for national acts. However, the US Patent and Trademark Office, or USPTO, swiftly rejected our application, claiming our name was disparaging to Asians. To support their claim, officials used sources like UrbanDictionary.com, a photo of Miley Cyrus pulling her eyes back in a derogatory gesture, and anonymous posts on Internet message boards using the word slant as a racial slur.

US Patent and Trademark Office logoI named the band the Slants because it represented our perspective—or slant—on life as people of color. It was a deliberate act of claiming an identity as well as a nod to Asian American activists who had been using the term for decades.

I named the band the Slants because it represented our perspective—or slant—on life as people of color. It was a deliberate act of claiming an identity as well as a nod to Asian American activists who had been using the term for decades.

I've been fighting in courts to register our name for the past five years. I've supplied thousands of pages of evidence, including letters of support from community leaders and Asian American organizations, independent national surveys, and an etymology report from one of the country's leading linguistics professors. The trademark office was not swayed. They called our effort “laudable, but not influential.” With just a few keystrokes, they wiped away the voices of thousands of Asian Americans.

We started digging deeper. Rather than focusing on whether or not Asian Americans actually believed our use of the word to be disparaging, we started questioning why the USPTO accused us of using a racial slur to begin with. After all, slant can mean any number of things, and the racial connotation was relatively obscure. In fact, over the years, the trademark office has received eight hundred applications that include variations of the word, but not one was rejected for being racist toward Asians—until an Asian applied.

Trademark officials admitted they considered the word a racial slur in our application because “it is uncontested that applicant is a founding member of a band composed of members of Asian descent.” They then presented evidence, including photographs of Asian people on our website, a “stylized dragon” on an album cover, and an illustration of an Asian woman on an album cover.

Ironically, our band was too Asian to use the word slant. USPTO thought people would draw the conclusion that our band's name was a reference to our ethnicity. In other words, anyone who wasn't Asian could register a trademark for slant without it being considered a racial slur. It was startling and deeply frustrating to realize that despite trying to use language to help protect my community from stereotypes and racism, I was being denied the right to trademark my band's name because of my race.

Through this process, I've come to understand that laws are designed to maintain the status quo. But shifts in language and identity politics require that bureaucracies move beyond simple cultural competency and instead navigate inconvenient and unknown waters.

Some may argue that the trademark office's actions were not racist. But racism doesn't look only like white supremacists burning crosses or wearing white hoods. Racist actions don't have to fit a stereotype of what racism is to be racist. Denying a right based on race is the very essence of racism. It is evidence of a racist system. And like all other systems, this is one that is resistant to change.
In my opinion, the role of the government shouldn't include deciding how a group can define itself; that right should belong to the community itself. It's clear in example after example that the dominant group is not only inconsistent but also sometimes completely off base when it comes to understanding the sentiments of people who have been marginalized for centuries.

We're fighting for more than a band name: we're fighting for the right of self-determination for all minorities. Things like this are the subtle indignities that people of color have to face every day: slights that don't seem big enough to make a fuss over, yet continually remind us that challenges to the norm (read: white, homogenous culture) are not welcome. One of the more amusing instances was the trademark office's denial of the Japanese word for luck—fuku—as a restaurant name, for fear that it might look like an obscenity.

The USPTO can say it doesn't have enough resources to do research on every application that comes in, or that it has to wait for a massive shift in popular culture over sentiments toward a particular word, phrase, or image. However, this subjective application of the law brings a chilling effect to free expression, especially on the part of individuals who wish to convey irony, neutralize slurs, convey artistic or political ideals, or engage in parody.

And it is subjective indeed: The USPTO has refused “wanker” for use on clothing, but approved it for beer. “Pussy Power” was rejected for entertainment services, but “Pussy Power Revolution” was considered acceptable for clothing. “Madonna” was rejected for wines on the grounds that it would be scandalous, but a different “Madonna” application was then approved. And nearly every racial slur known for Asian Americans has become a registered trademark at some point: jap, Oriental, chink, slope, and, of course, slant.

The fact of the matter is that this law has been unfairly targeting minorities since it was drawn up in the 1940s, and overcoming it would be a small but important victory in the greater battle for equality. For anyone who has been marginalized because of race, sexual orientation, gender, age, religion, or anything else, this is especially meaningful, because the law says that our communities should have the right to set the tone on appropriateness, rather than some disconnected government agency that believes it should protect others from uncomfortable or disagreeable ideas.

In April of this year, the US Court of Appeals for the Federal Circuit affirmed the trademark office's decision about our band's name. One week later, in an unprecedented move, the court vacated its ruling and issued a legal order for me to argue the constitutionality of the law so the court could reexamine it. Our case suddenly proved to be useful, especially to a federal judge who routinely has expressed interest in protecting the trademarked name of the Washington Redskins.

Some fear the disruption of this law: after all, if it were to be repealed by my band's trademark case, then there would be almost no legal recourse to have the Redskins' trademark registrations cancelled. Some also worry that my case will serve as a Pandora's box or floodgate for disparaging or offensive trademark registrations. For instance, the law that could cancel Redskins might also be used to cancel the NAACP's registration, since the phrase “colored people” in the organization's name could be considered disparaging by many people. Yes, these things might happen, but we shouldn't let the fear of some offensive trademark registrations trump the rights of marginalized communities.

And if we believe that the trademark office has been protecting minority groups, then we've all been fooled. As it is being applied in our case, this law is discriminatory. It only maintains the norm, and that norm is white homogenous culture, with no recognition of people who are practitioners of change. We live in a country where equality has been defined by white, heterosexual, cisgender men for hundreds of years, and it's time to bring other community groups to the table. We should not be afraid of using the expression of who we are to catalyze change.

The Slants signing autographs at Oregon State Penitentiary

The Slants signing autographs at Oregon State Penitentiary. Photo: Oregon State Penitentiary

 

Artists don't begin their careers thinking about how to dismantle laws that they aren't even aware of, and I'm certainly not an exception. When I first started the band, the intention was to take on stereotypes about Asian Americans, inject pride into our ethnic heritages, and increase our community's visibility in the entertainment industry.

But what I've come to see is that assumptions can be efficacious. The trademark office assumed that our name was inherently a racial slur and that the Asian American community would feel disparaged by it. When our community loudly expressed otherwise, officials assumed that approving our name would set a precedent that would create more paperwork and open the door for other controversial trademark applications. What if, instead, they treated us as applicants of any other race, as people instead of ideologies? What if our government's laws reflected the capacity for people, entire communities, and words and identities to change?

As it is, our legal system on trademark law feels like a prison created to keep disruptive ideas from coming into the mainstream. Officials may believe they are protecting the general public from harm, but they are actually erecting walls that discourage people from mobilizing for social justice by using language to reappropriate ideas. Just because we don't understand or agree with how someone creates social change doesn't mean we should prevent it. When it comes to social justice, we should ask questions and have meaningful conversations instead of making assumptions.

In the winter of 2011–12, our band spent the holidays performing for soldiers serving overseas. While one branch of the government was working against our band, another branch, the Department of Defense, called on us to do some outreach on its behalf. This was shortly after news spread about harsh hazing practices used on Asian American military recruits. One encounter on that tour really stood out.

We had just finished playing a concert at a NATO base when the local commander approached me. “That was incredible,” he said. “We've had a lot of acts here—big names, too—but I've never seen soldiers from all of the different countries dance together like that.”

He continued: “Also, I have to apologize. As the commander of the base, I'm expected to make appearances at these kinds of things. But when I first saw your poster, I didn't know what to make of this ‘Oriental' band. However, now I know I should never really judge these things on the surface.”

“Thank you so much. It's an honor to be here,” I said. “Also, you shouldn't use the word ‘Oriental,' because it makes you sound like a racist. But thank you.”

That night, fighting stereotypes of Asian Americans didn't come in the form of a lecture or a workshop on the model minority myth or a debate over “Asian privilege.” It happened through sincere fellowship powered by Chinatown dance rock. That night, the victory happened simply by showing up and having a meaningful conversation.

Comments

3 comments have been posted.

Totally agree with Dmae. As a teacher, this would be great piece to share with my students. Having a printable version would be super helpful, get this work out to an even greater audience and provide for dynamic and be great content for secondary classrooms.

Charles | September 2015 | Hubbard

Hi, Dmae, sorry you're having trouble reading this. You should receive the print version in the mail in the next day or two.

Kathleen Holt | August 2015 |

I really want to read this piece but the ever present O. Hmmm makes it difficult to see the text of the essay. Is there a way to click it off so the essays are more visible?

Dmae | August 2015 | Portland

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