To John Yang of Asian Americans Advancing Justice, NPR CodeSwitch, and Robert Chang of NAPABA:
I wanted to write you to address a few of the misunderstanding that I believe are being perpetuated about our case, Matal v. Tam, both in terms of the impact from this ruling as well as the general approach to achieving justice for our communities.
To start, I want to be expressly clear: we don’t have different values. We both care deeply about the most marginalized members of our society, we want to address systemic and institutional challenges faced by people of color, and we want to be intentional and equitable about the process. Where we differ is on our respective theories of change, direct experiences with challenges in this system, and understandings of how the law has worked (and hasn’t). I’m hoping that through thoughtful engagement, we can address some of the latter so that we can be better partners in advancing justice.
I understand you were hoping the Supreme Court would address these issues with more nuance. I propose that maintaining the status quo would not be the solution, especially when the law was often misapplied to minority identities. In fact, requiring already burdened communities to go through a degrading process of proving they are not offensive to themselves would be a regressive policy.
First, Some Background:
As you may or may not be familiar with the near-decade long history of my case and the work of my band, we originally fought this law because it was disproportionately targeting marginalized groups based on their identity and this denying them rights based on race, sexual orientation, gender, and political views. For example, when we asked the Trademark Office why they approve every trademark application for “Slant” but denied ours under the presumption it was disparaging, they responded by saying “Here, the evidence is uncontested that applicant is a founding member of a band (The Slants) that is self-described as being composed of members of Asian descent. . .Thus, the association of the term SLANTS with those of Asian descent is evidenced by how the applicant uses the mark – as the name of an all Asian-American band.”
Of course, our band was not the exception. Nonprofit organizations like Dykes on Bikes, activists like Randall Loo (“Chink Proud”), and media organizations like HEEB Media, were all similarly targeted. We tried appealing for six years, providing every imaginable form of evidence (dictionary experts, national surveys, letters from Asian American organizations, Asian American media reports, etc.) and calling for cultural competency. It was ignored. When a governor appointed committee of Asian Americans and Pacific Islanders asked the Trademark Office which Asian American organizations they worked with to determine the meaning and intention of my band’s work, they simply gave a form letter which stated:
“Our agency values diversity and is committed to a workforce drawn from all segments of American society. The USPTO is successful at recruiting, retaining, and advancing the careers of Asian-Americans. Over twenty-seven percent (27%) of the USPTO’s workforce is Asian…”
Of course, not a single one of these Asian Americans were consulted in this process.
Examining attorneys at the Trademark Office are under tight deadlines with high quotas to meet. They are not trained in cultural competency, nor would they have the capacity or interested to have an equitable process – this is why they believed that relying joke wiki-websites such as UrbanDictionary.com would be considered sufficient evidence and outweigh the voices of thousands of Asian Americans and dozens of social justice organizations who have supported our cause. They even deliberately used false evidence, claiming that our performance at the Asian American Youth Leadership Conference was cancelled even though the AAYLC provided a signed legal declaration saying otherwise.
I bring this up because as much as we’d like to believe the law provided some measure of protection, the reality is that it was not protecting any groups from any harm at all. As people who were opposing my position claimed, “no one is stopping people who lack a trademark registration from engaging in speech.” Even the ultimate goal of changing the Washington football team name would not be achieved through this process – at best, it might hurt Snyder financially, though he would still have substantial protections through the trademark equity he has built.
If the government truly cared about addressing racism through the Trademark Office, they would have begun by cancelling the registrations of the KKK, Stormfront, and other known hate groups. If they really cared about the Native American community, they would not have continued issuing out new registrations for the term Redskin, like they did in 2010 for a company called My Dadz Nuts.
Talking Points From the AAAJC/NAPABA on the Recent CodeSwitch Podcast
I wanted to address two of the main talking points that you have been using formed by Professor Chang which was used in his Washington Post Op-Ed, press releases, and which you used on NPR’s CodeSwitch.
First, there is a claim being made that trademark registrations is counterproductive to efforts for reappropriation because it would provide a monopoly over a particular phrase and have to be enforced, stopping all other uses of that phrase. However, this is an intellectually dishonest argument.
Trademark registrations are narrow – they do not give someone a license to stop all speech; they only allow the owner to prevent other uses that are misleading or may create likelihood of confusion in the particular category of good or service registered. For example, my registering of THE SLANTS for “musical performances” does not allow me to stop Asian Americans from using “slant” for computer devices, events, television shows, etc. I can only stop bands from using the same name (which makes sense, to prevent market confusion), which means people can register THE SLANT or THE SUPER SLANTS if they wanted. In fact, the week of our Supreme Court decision, a new Asian American social magazine was launched, called Slant’D – they did so, because they were inspired by our own fight for reappropriation.
If your theory were true, then the proliferation of registrations for QUEER would have harmed efforts by the LGBTQ community to advance identity rights as marks were being registered – but that didn’t happen. Their regstrations actually increased awareness and use by the community.
Furthermore, if it was true, then the dozens of existing registrations for SLANT held by others (including SLANTED RECORDS) would have prevented me from using the band name/registering it to begin with. This is also why the Washington Football would be unable to stop a Native American band from calling themselves “Redskin Revolt” and using that platform to protest mascotry – but prior to the Supreme Court decision, such an act would most likely be denied a registration due to accusations of “disparagement,” especially if it were a band comprised of Native Americans.
Saying the Supreme Court case would slow down the process of reappropriation is emphatically not true.
Second, you were quoted by saying “The bottom line is… that this case allows organizations or individuals to profit from using a racial slur or disparaging term.” Not only is this misleading, it counters the call for nuance that you have been pleading for all along.
As you admit, people can use any phrase they’d like in the marketplace (for profit or otherwise) without a trademark registration. The case did not change this fact.
Also, most of the rejections for “racial slurs” or “disparaging terms” were subjective interpretations that disproportionately targeted people of color and members of the LGBTQ community because they tend to be the groups that engage in reappropriation. Thus they were often targeted by their identity – like I was. However, the government no longer sanctions that subjective process.
Language is not fixed – terms are usually not inherently disparaging. They require context, intention, and a relationship to the community addressed. While some may benefit from engaging in nefarious behavior, it now allows our communities to engage in the marketplace of ideas in equal footing. In fact, now communities can be equipped to protect their own rights and prevent villainous characters from profiting and misleading people with these same terms.
HEEB, a Jewish publication on pop culture, is an oft-cited example in these cases. However, people rarely discuss their actual challenge with social change. They were granted the registration for their magazine but when they applied for the exact same mark in the categories of t-shirts and events, were denied for “disparagement.” This meant that when a group of holocaust deniers maliciously obtained contact info of the magazine subscribers and started inviting them to things marketed as HEEB EVENTS, the organization was unable to stop them. Had HEEB not been wrongly denied a registration, they would have been able to issue a cease and desist order. This case now allows a just procedure from other people wrongly profiting from racial slurs or countering the work done by reappropriation.
Laws, like words, are not always inherently harmful. It depends on how they are used. It is like a sharp blade: in the hands of an enemy, it can inflict pain and suffering. However, in the hands of a surgeon, it can provide healing. The law I fought against was a large sword used by the government to haphazardly target “disparaging” language but the collateral damage was on the free speech rights of those who need protected expression the most. Like other broad policies around access and rights (be it Stop and Frisk or voter ID laws), there was a disparate impact on the marginalized.
I’m hoping that you use your same passion in calls for nuance around the Supreme Court decision as you would in interpreting the decision. Communities can use this as an opportunity to advance reappropriation. This is why the effort was supported by progressive groups who engaged in justice, such as the Asian American Legal Defense and Education Fund, Japanese American Citizens Alliance, Chinese American Citizens Alliance, Asian Pacific American Network of Oregon, and the American Civil Liberties Union (and many others).
As you know, equity can be simply defined as providing more options to those who have the fewest. New strategies are being developed by communities of color to advance justice through intellectual property. We can certainly be critical of those who abuse our laws and we can definitely be skeptical in how the law will be used or even how my band uses its name. However, let us advance in a just manner, remembering that any discussions around the issues should be rooted in truth, not misleading statements, so that we can sharply wield this blade for justice.