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When the Portland-based Asian-American band chose to call themselves The Slants, they called it reappropriation. The federal government called it a racial slur.

(Sarah Giffrow)

When the Portland-based Asian-American band chose to call themselves The Slants, they called it reappropriation. The federal government called it a racial slur.



Six years after the U.S. Patent and Trademark Office first denied the group's attempts to trademark their name, The Slants are still fighting. Their case lands in the Federal Circuit Court of Appeals on Friday.



Simon Tam, the group's founder and bassist, says that in trying to protect minorities, the trademark office is instead silencing them.



"Some guy who has no connection to my community is telling me what's right and wrong for my community," Tam said. "If we win, marginalized communities will get a say in what's right for themselves."





Simon Tam

Tam, now 33, dreamed up the band in 2004. He was inspired by a scene in the movie "Kill Bill" that showed an Asian man walking into a bar looking cool and tough. Tam, tired of stereotypes that showed Asians as kung fu masters or geeky geniuses, started recruiting for a rock band.



He had the name before he had the musicians. Tam liked the way "The Slants" sounded -- it reminded him of an '80s new wave band. The name could be a nod to slanted guitar scales or a reference to the slanted perspective he had living as a person of color, he said.



Tam also liked the idea of reclaiming an old stereotype that suggests all Asians have slanted eyes. He was following in the footsteps of other Asian pioneers, he said, including the creators of Houston's Slant Film Festival and the maker of "The Slanted Screen," a documentary on Asian-American actors.



The band took off. They played anime conventions and other Asian-American festivals. NPR's All Songs Considered featured them. And they played a showcase at South by Southwest.



The band's lawyer suggested they trademark their name. Trademarking is a federal registration that prevents others from using the same term, or in The Slants' case, band name. It also helps musicians secure major label deals and licensing opportunities.



Tam applied for the trademark in 2009. The trademark office requires applicants send proof that they're using the term they're trying to trademark, so Tam sent in photographs and fliers of the band.



The government rejected his application, citing Section 2(a) of the 1946 Trademark Act. It says, in part, that a trademark can be rejected if it "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage ..."



That clause has led to conflicting decisions over the years. "Queer Eye for the Straight Guy" made it through, but the LGBT clothing store Clearly Queer's application was rejected. Heeb Magazine, a Jewish publication whose publishers chose its name as a reclamation of the slur, was denied a trademark in 2008. The Washington Redskins have lost, won and lost again in fights over their trademark.



As evidence against The Slants, Mark Shriner, the government attorney who considered The Slants' request, included a photograph of pop star Miley Cyrus "slanting" her eyes. He quoted from UrbanDictionary.com and Wikipedia.



"He used sources they wouldn't even accept in a middle school," Tam said.



The band appealed, arguing that their name was a reclamation, not a slur. They sent 2,000 pages of supporting documentation, including a report from an editor at the Oxford Dictionary and a national survey of Asian Americans, to support their claim.



Local Asian-American community leaders wrote letters of support.



"This does not disparage Asian identity," wrote Mari Watanabe, then executive director of the Oregon Nikkei Endowment. "It celebrates it."



Again, The Slants lost.





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"It really doesn't matter that the band itself is OK with the term," said Joey Mohr, a Portland trademark law attorney who has taught the topic as an adjunct professor at Willamette University Law School. "The office is going to focus on what it believes, and more broadly what the nation thinks of the term in reference to that community. If the rest of the country still thought of it is disparaging, the trademark office would be inclined to maintain its refusal."



Government trademark regulators do sometimes change their minds, Mohr said. That happened in a case involving the women's motorcycle group Dykes on Bikes. Just as The Slants did, Dykes on Bikes submitted materials from community groups attesting that they did not find the term offensive.



"The gay and lesbian community sent affidavits saying it wasn't offended by the term," Mohr said. "Eventually the applicant was able to submit enough evidence showing that the nation as a whole really used this term in a more positive light, and the examining attorney was convinced."



The Slants hired a new lawyer in 2011. He told the group they needed to change tactics, that they would never win arguing that Asians were OK with the band's name.



Federal regulators had approved almost 800 other trademarks that used the word "slants," the lawyer said. The band should reapply, he said, with an "ethnically neutral" application.



For their second application, The Slants sent in no photograph of the band. The only clue about the musicians' ethnicity was Tam's last name.



But the trademark office denied The Slants again. When Tam asked why, the government's lawyer explained that the association of the name with the racial slur was unavoidable because "applicant is a founding member of a band that is self described as being composed of members of Asian descent."



As evidence, Shriner cut and pasted the proof he had used to reject them in the first case.



"It was a refusal to register based on the ethnic background of Applicant and his associates that was offensive," band lawyer Ron Coleman wrote on his blog. "This is an Ex Parte Appeal of trademark explicitly refused registration on the basis of applicant's race."



The group's current appeal is based on procedural complaints; Coleman will argue Friday that the government attorney's Internet searches cited in the most recent rejection are dated before Tam's second application arrived. Thus, Coleman will argue, the government failed to give the new application due process.



Tam has spent more than $10,000 in legal fees. Tam, a marketing director and professor, has taken on second, third and fourth jobs. The lawyers are arguing his case pro bono, but he still can't afford the court fees his latest appeal will add.



The government regulator told him to drop the case, Tam said. The band can still call itself The Slants, even without a trademark.



"To me that's like saying you can still ride the bus, you've just got to sit in the back," Tam said.





-- Casey Parks

cparks@oregonian.com

@caseyparks