The Difference Between “The Redskins” Case and Ours

The Slants at MTAC

This is an older blog from 2014 but given the recent news (The Washington Redskins have filed a petition to have their case heard alongside ours at the Supreme Court), we thought it would be good to revisit this:

 

This morning, one of the top trending news stories is the cancellation of the trademark registrations for the Washington Redskins. Given the political pressure that’s been widely applied, it wasn’t that surprising. People drawing false-equivalency comparisons to my trademark case pending before the U.S Court of Appeals for the Federal Circuit wasn’t surprising either. In fact, it seemed almost ironic that the decision was made shortly after my TED talk criticizing the Trademark Office of insensitivity for racial issues was released.

Why the cases are dissimilar

It’s easy to draw conclusions between my band’s case (THE SLANTS) and that of the REDSKINS. However, our case differs than theirs in a number of ways:

1.Unlike REDSKINS, THE SLANTS is not an inherent racial slur. “SLANT” means a number of different things and the racial connotations are so obscure, nearly every major dictionary publisher removed the racial slur from its list of possible definitions. REDSKINS always has been used as a racial slur and has a long history of demeaning Native Americans. “SLANT” has not. It has been and is a commonly used “neutral” term (according to dictionary experts, it was obscure even during the height of its racial use in 1920-1940). Furthermore, two national surveys showed that Asian American do not find our name disparaging (92%-98% of Asian Pacific Islanders support our use of the name).

2. REDSKINS has a substantial composite of Native Americans demonstrating serious concerns over the name. THE SLANTS has not garnered wide protest from Asian Americans; in fact, quite the opposite. Our band has been supported by lifelong activists, organizations, academics, and other experts who understand the sentiment of our community. We’ve partenered with over 200 social justice and advocacy organizations across North America to focus on anti-racism work.

3. The owners of “REDSKINS” are not members of the “referenced group,” unlike THE SLANTS. It’s important to remember that of the 800+ trademark applications for variations of the term “slant,” only one was denied for being a “racial slur.” In other words, the Trademark Office never considered it to be a slur against Asians until an Asian applied. The Trademark Office clearly expressed that the only reason why they associated our trademark application with a racial slur was because of my race. They wrote, “it is uncontested that applicant is a founding member of a band…composed of members of Asian descent…thus, the association.” In other words, if I were white, like every other applicant in the history of the country, it would have not been questioned to begin with.

There are numerous other legal and social differences, but it should be made clear that the intent, as well as the reaction from the community, are completely different. In that sense, they are not analogous. The only commonality between the two cases is the trademark law that is at stake: Section 2(a) of the Lanham Act, the same law which has been inconsistently applied for decades and has been disproportionately affecting minorities for about 70 years.

Also, while I personally believe in the power of reappropriation as a tool to create social change (as I explain at YOMYOMF here and here, TEDxUofW here, at RaceFiles, and to TIME), our legal argument isn’t constructed on this point. You can read our entire brief and all of our arguments, via JDSupra.

The whole thing is a bit frustrating because it is much more difficult to prove that something is not offensive than to prove that it is. That being said, there has never been a formal challenge or objection by members of the Asian American community despite nearly 1,000 appearances by the band – in fact, nearly every major Asian American media source has supported our work (including Asian Week, Angry Asian Man, Disgrasian, 8Asians, the Asian Reporter, the Asian American Press, and more. In national surveys, the overwhelming majority of Asian Americans support our use of the name. This, of course, is a completely different set of circumstances than what Native Americans and THE REDSKINS have been facing.

“Redskin” has a long history of oppression, the football team treats the people as mascots. On the other hand, Asian-American activists have been using “SLANT” to present a bold portrayal of our culture for decades now. THE REDSKINS reinforce stereotypes of savage Native Americans. THE SLANTS breaks stereotypes about Asians Americans, especially in the entertainment industry. Unlike sports teams, artist have been the social conscious for humankind for ages – calling out inequities, celebrating beauty, and challenging our traditional notions on how we view life.

Will THE REDSKINS’ cancellation affect our case? I don’t believe so. Not only are the social circumstances substantially different, so is our legal argument. Watch and see, as our case will most likely be before the Federal District Court of Appeals for the next year.

Racism is a complex issue, and as such, there are no easy answers. Should the Trademark Office be focusing on their purpose (avoiding confusion in the marketplace and protecting intellectual properties), or should they be taking on the role of legislating speech as well? If they’re going to be doing so, they should at least be consistent. Yet, they’re all over the map: they approve “Queer Eye for the Straight Guy” but deny “Clearly Queer,” they like “Do the Heritage Slant” but not “The Slants,” and “perma-chink” is OK but “chink proud” is not.

Some people who take issue with re-appropriated terms believe that racial slurs should not be used in any case whatsoever, but that’s now how language works. Just look at the term “queer,” which has definitely evolved with its use over time. Is it appropriate for some people to use but not others? Maybe – but that shouldn’t involve a government office.

Most people who advocate for better control don’t believe in the outright ban on all firearms, they just think criminals, the mentally ill, or minors shouldn’t have access to them. Maybe words are like that – they can be used to hurt or to protect, depending on whose hands they are in. Actually, I think it’s more like medicine. Many medicines are derived from poisons (like ergot or venoms) – what was once used to hurt is now used to heal. In the wrong hands, with the wrong intent, the poisons can cause damage. However, in the right hands, those same poisons can be repurpose/reappropriated to heal certain injuries. When it comes to marginalized populations, there’s no question that reclaiming poisonous words has created healing and reduced hate (psychological studies show that even the dominant group feels a loss in power).

31 thoughts on “The Difference Between “The Redskins” Case and Ours

  1. You keep saying that your case and the Redskins’ case are “legally” different. But Section III of your brief argues that Section 2(a) of the Lanham Act is unconstitutional on its face. This same legal argument is core to the Redskins’ case. And it’s the same argument that you won on in the Federal Circuit.

    I understand that your first argument is that the USPTO misapplied Section 2(a), which is a much stronger argument in your case than the Redskins’. But the Supreme Court may very well rule in your favor on the First Amendment argument, while it might be inclined to defer to the fact-finding by the USPTO and reject your argument that the USPTO misapplied Section 2(a).

    In sum, from a legal perspective, I just don’t see why the two cases are so different.

    1. Our case is dealing with a trademark registration, theirs is dealing with a trademark cancellation. While it’s true that we share some First Amendment arguments, we differ in that we argue that trademarks are “commercial speech.” They disagree (and in fact, point it out several times in their recent filing with SCOTUS). Also, the have a sharp focus on the Fourth Amendment, we do not.

      Additionally, this post was written two years ago (as mentioned above) – before the CAFC brief was written or filed. In that filing, we focused almost entirely on evidentiary and procedural issues, with only a small mention of the First Amendment (also the focus of the first CAFC hearing).

  2. There is an obvious argument that is overlooked in all of the insensitivity sensitivity in that neither side is right nor wrong and the prejudice may be, after all, in the eye of the USPTO employee reviewing the MARK.

    If one sits down, invests time in to reviewing trademarks that are approved by the USPTO and at the requestor, one will see examples such as the “N” word being applied for and granted to an actor of that community.

    If one sits down, invests time in to reviewing trademarks that are approved by the USPTO for body parts using words moms no longer wash mouths out with soap, when used.

    That is, “IF” one sits down.

    Being a DC insider, more important is to realize the motivations of the person forcing the issue- did they demonstarte personal harm. More often, if you are around DC long enough, there is nothing you have not seen, even alot of adults with their inner child still craving attention.

    The tragic reality is that every dollar going in to arguing these matters is a dollar going to line lawyers pockets that cannot be spent on community.

    So let me ask, is the real bigot the one reviewing the application at the USPTO, someone with job security most likely, as it is today, working from home somewhere in the world after doing their two year stint on campus in Alexandrai, someone we have no idea of their politics, their upbringing, their issues, medical or otherwise. Inquiring minds want to know because one day, the Mark that will be rejected is dog or cat or toe or two. Why? Becauuse that same examiner knew of someone who knew of someone who knew of someone who was offended because cat can be pussy which can mean something other than feline and two is more than one in a sea of people preferring to be alone….. get it?


    Sincerely
    Carrie Devorah

    1. We did speak with the original examining attorney (several times, in fact) – and despite them requesting specific pieces of evidence (which we supplied more than enough of – national surveys, dictionary experts, legal declarations, and organizations that cleared up the record when our concert was supposedly canceled due to controversy over our name), they continued to emphasize that the decision came from on high. The reality is that no single examining attorney will have the cultural competency to understand the nuances of all language, identity politics, and where underserved communities stand on issues, especially if there are differing opinions. So, we see that the price paid for this lack of understanding is paid for on the backs of disadvantaged communities who don’t have the resources or time to perpetually appeal and fight for their rightful registrations.

      They claim that a fair process is in place, that people can provide evidence to show that a substantial composite doesn’t actually find a term disparaging, etc. but no one has ever been successful in the history of the country. How fair is that process really?

      1. The process is not fair.

        Start there.

        Accept there was an agenda in place. THAT SAID, you do not state you took action against the persons or parties who complained against your name in the getgo, cancelling your concert.

        It is a fair reach to go from cancelling your concert to cancelling your trademark. Steps are missing.

        Let me explain the misnomer of belief that someone working in a government job is shielded from litigation for decisions they make. They are not, moreso, that person is bound to their oath of being a civil servant.

        Your loss includes goodwill, restraint of trade, state by state impact of of your Rights of Publicity and Privacy that are most likely impacted by that person that leapt their personal bias in to your band name.

        A slant, by dictionary definition, is “to not be level or straight up and down

        : to present (something, such as a news story) in a way that favors a particular group, opinion, etc.”

        How did that definition that is a binding definition get twisted? Someone failed in their diligence and in stating THAT is the text book definition of slant.

        Moreso, slant.com was created and approved as a domain 1996. A domain, a trademark are identifying monikers. IF your trademark was cancelled then the domain should be cancelled unless…..


        Sincerely
        Carrie Devorah

          1. Pardon the obvious, but it appears you are Asian, hence, I fall back on the prejudice of the individual examiner against Asians. Of course there is an action- against the attorney who ruled there is such thing as ‘too asian.’ WOuld they rule you are too tall? Too dark haired? Too male? Too gay?… moreso in a culture of diversity? WOuld they rule you are too young? Too 20? Too not
            60?

            Merriam Webster defines “too” as ” more than what is wanted, needed, acceptable, possible….”

            Pardon my technical expression but that “too” ruling is “too” crap….. other than being “too” reflective of the personality of the person that reviewed your papers.

            Maybe you are the benchmark of what Asian is?

            Look up the Oath a civil servant swears to when taking on a government job. Do know that a person that works for government is not above the law. Who is that person? You can see where they are licensed as a lawyer, what state they are based in when they made their opinion. More often than not these persons are not registered with the local bar association. Is that person Asian themselves? Dont go on a tear against them. Research….

          2. Hi,

            They’re not Asian. They’re also licensed for national issues on behalf of the government in addition to their local jurisdictions

          3. I do not understand the “licensed for national issues…”

            Let me ask you the origin of the name….what did your group intend the name to mean?

          4. They’re empowered to act on behalf of the U.S government across state lines, not just in the states in which they are barred. As we’ve stated an endless number of times, our name refers to our perspective or “slant” on life as people of color (it’s The Slants of our collective experiences). It’s also used to address false stereotypes about Asian Americans, a form of reappropriation. However, the intent doesn’t matter, the Trademark Office has stated that multiple times (which is why non-Asians can register marks for terms like “chink,” “jap,” and “oriental”).

          5. Clarify who is the “they” you are refering to.

            It the USPTO is stating slants is offensive, anti Asian then no one can use those words. What is their exact wording in their ruling?

          6. They = examining attorneys.

            The USPTO isn’t saying slants is offensive, there’s no law against that. They’re saying THE SLANTS is disparaging, and as such, unable to be registered. If you’re interested in reading what the respective parties have said, these are all open public records available on the USPTO website.

          7. DEFINITION OFFENSIVE:
            adjective
            1.
            causing resentful displeasure; highly irritating, angering, or annoying:
            offensive television commercials.
            2.
            unpleasant or disagreeable to the sense:
            an offensive odor.
            3.
            repugnant to the moral sense, good taste, or the like; insulting:
            an offensive remark; an offensive joke.
            4.
            pertaining to offense or attack:
            the offensive movements of their troops.
            5.
            characterized by attack; aggressive:
            offensive warfare.

            DEFINITION DISPARAGING:

            adjective
            1.
            that disparages; tending to belittle or bring reproach upon:
            a disparaging remark.

            They had many adjectives to choose. Slant is also describes things not are not horizontal.

            Like I said, Challenge the examiner, the department……………………. the examiner chose to limit their definition to an offensive one. NOW that said, I dont think I asked…. what is the reason for your name, THE SLANTS. What did it mean to your band?

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