Federal Appeals Court to Review “The Slants” Trademark Application

Guitarist playing an electric guitar. Shallow depth of field. Grunge filter.

Portland, Oregon based rock band “The Slants” isn’t planning to change its name anytime soon. It just wants the Trademark Office to recognize its chosen name and grant it a trademark registration. After determining that “The Slants” is a disparaging term and rejecting its application, the Trademark Office has stuck to its guns despite multiple attempts by the band to appeal the decision. The band now rests its hopes in a panel of federal appeals judges, hoping they will overrule the U.S Patent and Trademark Office. The question of whether free speech rights should trump trademark law’s prohibition on immoral, scandalous or disparaging marks will now go before this group.

The Slants, Asian-American Band, has been trying to get a federal trademark registration since 2010 when the band first filed a trademark application. The application was rejected on grounds that the name was disparaging to Asians. The USPTO cited trademark law that states immoral, scandalous, or disparaging marks are to be refused registration. Despite counter arguments from the band’s trademark attorney and repeated attempts to get the mark through the USPTO, the Office hasn’t backed off of its position that the mark is disparaging. The band is continuing its fight however and now the debate will move on to a panel of federal judges.

The Slants argue that its free speech is being encroached and it shouldn’t be the government’s place to create viewpoint based restrictions on its right to trademark protection. What is immoral, scandalous, or disparaging is in some cases subjective. Should it be up to the USPTO to make the determination? The band argues it should not.

This issue is important to the band, but there are others who will follow this decision closely. It could have a direct impact on the Washington Redskins football team. After multiple challenges opposing the Redskins’ federal trademark registration by Native Americans, the USPTO recently rescinded the team’s registration on grounds that it is disparaging. If the appeals panel rules that free speech rights trump trademark law’s prohibition on immoral and disparaging marks, the decision could impact the registrability of the Redskins trademark. This decision will be one to watch.

Most marks are not refused on grounds of being immoral or scandalous, but there are numerous grounds on which a mark can be refused registration. So it pays to be current on what’s happening in the world of trademarks. Most businesses are not equipped to keep up on trademark law, so it makes sense to hire a good trademark attorney who does. If you are ready to file a trademark application or have questions about the process, please contact the trademark attorneys at Trademark Access. Let our experience protect your valuable brand.