By Simon “Young” Tam
Last week, I received word that a law case I’ve been working on for nearly six years was victorious after a federal court en banc hearing. This was a historic moment. The case could radically affect intellectual property law, freedom of speech, and commercial speech across the country – and may even influence how similar cases could be handled internationally as well. Like many other people, I learned about the news on Twitter.
I didn’t realize it at the time, but a perfect storm for misinformation was quickly brewing:
- The news hit during the week of Christmas, which meant most journalists were off. This meant that unlike the other peak moments of our case, the media was not calling to interview and get key insights or fact check. Many quickly read first few pages of the 110-page decision – or worse, relied on others’ summaries and interpretations of it instead. This also meant that many major news outlets were publishing articles with supposed quotations from me even though we never spoke…and many “facts” of the case were simply incorrect (such as the number of judges who agreed or dissented)
- Reporters were not looking at our case in its historical context at all. Instead, many of the decisions were framed around a larger, and arguably more newsworthy case instead (at least to them). Almost every news report used a direct comparison to the Washington Redskins – but without the context or important distinctions between the two cases.
- Not only is intellectual property law often misunderstood, Section 2(a) of the Lanham Act is even more so. Most attorneys never deal with it during their entire career and even fewer have read all few thousand pages of our case files, so when people call on attorneys to get insight or comment for a story, they’re often wrong and based on false assumptions.
- The issue is even more complex when you add identity politics, reappropriation, and systemic racism into the mix.
As my Google Alerts and other notifications were exploding, I could see diverse reactions to the news as well. Most people familiar with the case and the long history of problems created by Section 2(a) were celebrating. However, there were also some who were deeply upset, including those thought this might doom the Change the Name campaign (it doesn’t – that would be a logical fallacy of post hoc ergo propter hoc).
Then, numerous law firms and attorneys wanted to be opportunistic and write about the case themselves, even though most lacked the basic historical context to do so. A disgruntled former band member even jumped on board, spreading comments about the band/case even though he had not read any of legal documents himself.
In other words, everyone was having a lot of discussions, but almost no one had the essential foundational knowledge to actually have informed, nuanced thoughts about this case. People were happy to make assumptions and accusations about me/the band, which ranged from me “hating all white people” to me deliberately doing this “to support Dan Snyder.”
It was easier for folks to take point their fingers than to ask why a self-proclaimed anti-racist activist would be locked in such a complex legal struggle for so long.
Remember, the case In Re Tam literally has my name on it. It was my name, my reputation, my career at stake. I was the one who worked tirelessly to gather input from over 150 legal and linguistic experts, social justice organizations, activists, surveyors, artists, and artists across 34 states on this. I was the one who spent six years studying, writing, speaking, and fighting. Surely, I might have something to say that had more weight than perspectives gained from a cursory glance at misleading headlines?
One of the more ridiculous “articles” asked, “Will USPTO Director Michelle Lee’s Signature Adorn a SLANTS Certificate of Registration?” The author, of course, did not think about how the audacity of speaking on behalf of Asian Americans could be problematic itself (um…thank you for being offended on my behalf), nor did they even realize they were tokenizing the Director in this process.
They even included a photo:
And like many others who incorrectly assume that a trademark certificate equates a “government stamp of approval,” the author failed to address the tough questions with these lines of thinking. For example,
- For years, the Trademark Office has issued out registrations for marks that are sexist. Did this attorney show compassion, worry, or scorn that as a woman, Lee would have to sign those certificates as well?
- There are numerous trademark registrations for white supremacist groups. If the USPTO, the government, or attorneys had issue with the “stamp of approval,” why have no efforts been made to cancel these marks? Why only draw the line at football teams and Asian rock bands?
The article, like many others, also continually state that “THE SLANTS” is disparaging to Asian Americans. Yet, not one of these articles supports the claim with any evidence. They simply state it matter-of-fact, despite the ample evidence that Asian Americans overwhelming support “THE SLANTS.” Did these people forget that the Trademark Office relied on UrbanDictionary.com and wiki-sources for their evidence? That’s what we call anecdotal fallacy.
Let us not forget what this case was all about when we began: the United States Patent and Trademark Office, in all of its political paternity, denied me a right based on race. As the Ex Parte Appeal Brief states:
The refusal here was explicitly, and improperly, premised on the ethnic identity of Applicant and the other members of his band. “Here,” wrote the Examining Attorney, explaining the “association” between the mark and the Asian community, “applicant is a founding member of a band . . . composed of members of Asian descent. . . . [The] association of the term SLANTS with those of Asian descent is evidenced by how Applicant uses the mark – as the name of an all Asian-American band.” By the Examining Attorney’s logic, the same exact application submitted by a non-Asian would be entitled to registration. THE SLANTS, the PTO admits, is not inherently offensive, as, for example, HEEB and SQUAW are. THE SLANTS could be registered as a trademark – just not by Asians.
So great was the USPTO’s concern that they even deliberately used false information as evidence. For example, they claimed that one of our band’s performances was canceled “due to controversy over the name.” Yet when the steering committee of the event in question corrected the USPTO on this, stating that we were cancelled due to logistical issues (in fact, we were invited for future performances and keynote presentations), they continued to willfully assert the false claim, even before a panel of judges at the U.S Court of Appeals for the Federal Circuit.
Our argument was rooted in evidentiary issues but they were ignored by the Federal Circuit. They were more interested in ruling and commenting on the First Amendment implications of our case. This is why the court bound the record – if they had admitted that the Trademark Office committed procedural issues, the trademark registration would have been granted and they would not be able to use our case as an excuse to revisit the McGinley case, influence the direction of how the Redskins’ case would be affected, or possibly repeal Section 2(a) of the Lanham Act.
Remember, we never filed a petition to the court decision. We didn’t have a chance to. The Federal Court issued the Sua Sponte Order to Vacate on their own accord – but limited arguments to the First Amendment.
While I have definitely voiced support for expanding Free Speech, this case was about taking down a law that was disproportionately being used to suppress the speech of marginalized communities and exposing the Department of Justice and U.S Trademark Office for using problematic and racist approaches to law. And while the case may influence the outcome for Pro Football, these are important contextual elements that need to be considered as well.
Unfortunately, the story has often been reframed to create fighting amongst marginalized communities instead of building consensus on how to create positive social change, to focus on a wealthy football team owner rather than the small businesses who are more affected by trademark law, and to create sensationalized headlines instead of sensible policy.
Whether it is a journalist or a lone attorney blogging about the issue, there should be a moral obligation to check the facts of the story before publishing it first. As consumers driven by tweets and clickbait, we have a responsibility for keeping them accountable as well. Careers, reputations, and complex legal cases are on the line. But maybe that’s just my slant on the matter.