by Dennis Crouch
In re Tam (Fed. Cir. 2015) (en banc order)
Simon Tam has been attempting to register the name of his band “The Slants” as a trademark. However, registration has been denied under Section 2(a) of the Lanham Act as a disparaging mark. In particular, Tam’s band is an Asian-American band and the term “slant” (according to the Urban Dictionary) is “A derogatory term used to refer to those of Asian descent. More accurately, it tends to refer to anybody with slanted eyes.” In a decision last week, the Federal Circuit affirmed the PTO’s denial. Judge Moore penned the original unanimous opinion, but also penned an addendum opinion that added a few additional nuggets. One of those nuggets has caught the eye of the Federal Circuit as a whole and is now the subject of a sua sponte en banc rehearing. Question presented:
Does the bar on registration of disparaging marks in 15 U.S.C. § 1052(a) violate the First Amendment?
The panel opinion – following prior precedent – answered that question “no.” However, Judge Moore recognized some amount of tension – especially in view of the rise in protections for commercial speech and in the power of the “unconstitutional conditions doctrine.”