The Supreme Court will hear indie artist’s trademark case on January 18th.
It’s hard to come up with a good band name. Once you do, there’s even more challenges: Googling it to make sure no one else is using it, applying for a trademark, taking your case for that trademark all the way to the Supreme Court of the United States…
Okay, well maybe that last one isn’t an everyday band struggle, but it’s about to happen to CD Baby artists The Slants, an all Asian-American dance-rock band from Portland, Oregon (who we spoke with about their trademark woes in an episode of The DIY Musician Podcast).
Back in 2010, The Slants’ application for a trademark was denied because the examiner claimed the band name was a “disparaging term.”
Here’s what happened, according to a recent press release:
In 2011, Tam filed a second application, but was rejected again under Section 2(a) of the Lanham Act. After numerous appeals and arguments in court, the band finally prevailed on December 22, 2015, with the United States Court of Appeals for the Federal Circuit ruling that The Slants have the right to register their trademark.
In a decision with national implications on free speech, the appeals court ruled that the U.S Patent and Trademark Office and Department of Justice violated the band’s First Amendment rights. In a 9-3 vote, the appeals court struck down the “disparagement” portion of the Lanham Act, a 1946 law that allowed the Trademark Office to deny marks that could be considered “scandalous, immoral, or disparaging.”
Writing for the opinion, Judge Kimberly Moore stated, “Courts have been slow to appreciate the expressive power of trademarks…Words — even a single word — can be powerful. Mr. Simon Tam named his band The Slants to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.”
Michelle K. Lee’s, the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) responded by petitioning the Supreme Court on Wednesday, April 19, 2016.
And soon, on January 18th, 2017, The Supreme Court will hear The Slants’ case. What will that mean? Legally speaking, who knows! But it definitely means the band will be playing a bunch of shows in the DC area over the next week and a half.
For details on shows, the ruling, and more, stay tuned at www.TheSlants.com.