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Is Band's Name Too Offensive For Trademark Approval?
Offensive band names are a staple of rock music. Rock fans of a certain age will remember The Dead Kennedys of punk rock fame. The Butthole Surfers, Pussy Galore and Dying Fetus developed substantial followings despite, or because of, their outrageous names. Oregon dance rock band The Slants is another that seems determined to provoke. The band's Asian-American founder, Simon Tam, has said the band's name is not intended to offend people of Asian descent, but rather “a way to reclaim that stereotype and take ownership of it” ' much as Dykes on Bikes has done with sexual orientation stereotyping.
Tam has been trying for years to register his band's name with the U.S. Patent and Trademark Office (PTO), just as Dykes on Bikes did five years ago. But he's been rebuffed twice. In January, Tam's attorney argued to the U.S. Court of Appeals for the Federal Circuit that the Trademark Trial and Appeal Board lacks the constitutional authority to decide whether a mark is “disparaging” or “scandalous” and therefore unworthy of registration. In re Tam, 2014-1203.
Tam made his pitch the same day the U.S. Justice Department announced that it will defend the constitutionality of '2(a) of the Lanham Act against similar claims being pursued by the Washington Redskins. Both cases come amid the backdrop of a U.S. Supreme Court that has taken an increasingly hard line on viewpoint discrimination. In December 2014, the High Court decided to review whether the government can withhold vanity license plates on the ground of their offensive character.
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