In 2011 a young musician and polymath, Simon Tam, got a suggestion from a lawyer friend. Simon’s band, “The Slants,” was blowing up quite a bit, and the lawyer friend was pointing out that they had not trademarked their name. The lawyer said that it shouldn’t be a big deal, a couple of hundred dollars and some paperwork.
Mr. Tam was pretty busy, but since the lawyer said he could take care of it Tam said to go for it. They had already been using the name for a while; in fact, their album “Slants! Slants! Revolution” in 2009 had taken for granted that the ironic use of the slur, based on the imagined shape of Asian eyes, was something they could own and take back. (I should note that, if you are older than 40 or younger than about 25, there was this thing called “Dance! Dance! Revolution” in arcades…oh, never mind.)
The group wasn’t really worried much about their trademark application; it all seemed pro forma. But one day (according to the version told here: Meredith Bragg (Interviewer), “The Slants: The Band Who Must Not Be Named,” Reason, April, 2017, http://reason.com/archives/2017/03/11/the-slants-the-band-who-must-n ) the lawyer friend called and said they had a problem. “They said your [band] is disparaging to persons of Asian descent….[meaning that] a substantial composite of the reference group has to find it disparaging.” The reference given by the trademark office was that great legal authority Wikipedia, and a photo of Miley Cyrus pulling her eyebrows back and sticking her teeth out.
That was it. The trademark Nazis said, “No trademark for you!” To be fair, I can understand being offended by Miley Cyrus, but that’s hardly a problem for Mr. Tam’s band. And offensive, “let’s own this!” band names have a long tradition in rock. Right off the top of your head, you can think of Courtney Love’s band, “Hole” (it was all women; OMG!); the “Butthole Surfers” (I don’t know if that’s offensive to surfers, but they still have a MySpace page, and that should offend anyone); and “The Dicks.” You might think that “The Dicks” would go on tour with “Hole,” but The Dicks did an album called “Dicks Live! Hungry Butt,” so they might not really be on that team.
Yes, that was a really offensive paragraph. Rock music, punk music, hip hop if it’s real, all of it should be pretty upsetting and offensive. (I imagine that by this point my good friend Jacob Levy is clutching at his pearls and fanning himself with a copy of Spirit of Laws, muttering, “Wah, wah, ah NEVah!”)
Well, Mr. Tam and the other Slants went to court. They managed to take the issue all the way to the Supreme Court. The case was heard in January. And it was decided on Monday.
And the Court was quite properly offended by the decision of the trademark office. Here’s the decision (http://www.npr.org/sections/thetwo-way/2017/06/19/533514196/the-slants-win-supreme-court-battle-over-bands-name-in-trademark-dispute ), and here is Damon Root with some commentary. [ Damon Root, “In Major Free Speech Victory, SCOTUS Rules for ‘The Slants’ and Strikes Down Federal Trademark Restriction,” Reason, Jun. 19, 2017 11:18 am, http://reason.com/blog/2017/06/19/in-major-free-speech-victory-scotus-rule ]
Now why doesn’t somebody do something about Miley Cyrus?