For ‘The Slants,’ an appellate trademark coda
Call this a surprising coda for an Asian-American dance rock band involved in a long-running effort to secure a federal trademark registration for its name: The Slants. A federal appellate court has taken it on its own accord to reconsider en banc the three-judge ruling that just recently reafirmed the Trademark Trial and Appeals Board decision to deny mark registration to the founder of the Asian-American band. While a certain pro football team can take the field in the nation’s capital and give wide offense, many say, to Native Americans, Simon Tam, the dance rock band’s founder, twice was refused mark registration for his group’s name. On both occasions, the examining attorney refused to register it, finding it “disparaging to Asian Americans.” The case went up on appeal, here’s how it came down, then turned around–a little like watching a Washington linebacker running in circles in downfield. The disparagement clause On appeal, Tam argued that the board erred in finding the mark disparaging under Section 2(a) of the Lanham Act and challenged the constitutionality of this proviso that lets the U.S. Patent and Trademarks Office refuse to register a mark with matter that “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols or bring them into contempt or disrepute.” The primary test to determine if a mark is disparaging is (1) what is...
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