This morning, one of the top trending news stories is the cancellation of the trademark registrations for the Washington Redskins. Given the political pressure that’s been widely applied, it wasn’t that surprising. People drawing false-equivalency comparisons to my trademark case pending before the U.S Court of Appeals for the Federal Circuit wasn’t surprising either. In fact, it seemed almost ironic that the decision was made shortly after my TED talk criticizing the Trademark Office of insensitivity for racial issues was released.
Why the cases are dissimilar
It’s easy to draw conclusions between my band’s case (THE SLANTS) and that of the REDSKINS. However, our case differs than theirs in a number of ways:
- Unlike REDSKINS, THE SLANTS is not an inherent racial slur. “SLANT” means a number of different things and the racial connotations are so obscure, nearly every major dictionary publisher removed the racial slur from its list of possible definitions. REDSKINS always has been used as a racial slur and has a long history of demeaning Native Americans. “SLANT” has not. It has been and is a commonly used “neutral” term (according to dictionary experts, it was obscure even during the height of its racial use in 1920-1940).
- REDSKINS has a substantial composite of Native Americans demonstrating serious concerns over the name. THE SLANTS has not garnered wide protest from Asian Americans; in fact, quite the opposite. Our band has been supported by lifelong activists, organizations, academics, and other experts who understand the sentiment of our community.
- The owners of “REDSKINS” are not members of the “referenced group,” unlike THE SLANTS. It’s important to remember that of the 800+ trademark applications for variations of the term “slant,” only one was denied for being a “racial slur.” In other words, the Trademark Office never considered it to be a slur against Asians until an Asian applied. The Trademark Office clearly expressed that the only reason why they associated our trademark application with a racial slur was because of my race. They wrote, “it is uncontested that applicant is a founding member of a band…composed of members of Asian descent…thus, the association.” In other words, if I were white, like every other applicant in the history of the country, it would have not been questioned to begin with.
There are numerous other legal and social differences, but it should be made clear that the intent, as well as the reaction from the community, are completely different. In that sense, they are not analogous. The only commonality between the two cases is the trademark law that is at stake: Section 2(a) of the Lanham Act, the same law which has been inconsistently applied for decades and has been disproportionately affecting minorities for about 70 years.
Also, while I personally believe in the power of reappropriation as a tool to create social change (as I explain at YOMYOMF here and here, TEDxUofW here, at RaceFiles, and to TIME), our legal argument isn’t constructed on this point. You can read our entire brief and all of our arguments, via JDSupra.
The whole thing is a bit frustrating because it is much more difficult to prove that something is not offensive than to prove that it is. That being said, there has never been a formal challenge or objection by members of the Asian American community despite nearly 1,000 appearances by the band – in fact, nearly every major Asian American media source has supported our work (including Asian Week, Angry Asian Man, Disgrasian, 8Asians, the Asian Reporter, the Asian American Press, and more. In national surveys, the overwhelming majority of Asian Americans support our use of the name. This, of course, is a completely different set of circumstances than what Native Americans and THE REDSKINS have been facing.
Will it affect our case? I don’t believe so. Not only are the social circumstances substantially different, so is our legal argument. Watch and see, as our case will most likely be before the Federal District Court of Appeals for the next year.
Racism is a complex issue, and as such, there are no easy answers. Should the Trademark Office be focusing on their purpose (avoiding confusion in the marketplace and protecting intellectual properties), or should they be taking on the role of legislating speech as well? If they’re going to be doing so, they should at least be consistent. Yet, they’re all over the map: they approve “Queer Eye for the Straight Guy” but deny “Clearly Queer,” they like “Do the Heritage Slant” but not “The Slants,” and “perma-chink” is OK but “chink proud” is not.
Some people who take issue with re-appropriated terms believe that racial slurs should not be used in any case whatsoever, but that’s now how language works. Just look at the term “queer,” which has definitely evolved with its use over time. Is it appropriate for some people to use but not others? Maybe – but that shouldn’t involve a government office.
Most people who advocate for better control don’t believe in the outright ban on all firearms, they just think criminals, the mentally ill, or minors shouldn’t have access to them. Maybe words are like that – they can be used to hurt or to protect, depending on whose hands they are in. Actually, I think it’s more like medicine. Many medicines are derived from poisons (like ergot or venoms) – what was once used to hurt is now used to heal. In the wrong hands, with the wrong intent, the poisons can cause damage. However, in the right hands, those same poisons can be repurpose/reappropriated to heal certain injuries. When it comes to marginalized populations, there’s no question that reclaiming poisonous words has created healing and reduced hate (psychological studies show that even the dominant group feels a loss in power).