Simon Tam with The Slants interview:

Simon Tam, musician turned reluctant legal activist, has been in and out of the news for the past year, most recently for winning an appeal in a trademark case involving his Asian-American band, The Slants. The band had been denied a trademark under section 2(a) of the Lanham Act because “The Slants” was considered derogatory towards Asian people. This decision by the U.S. Circuit Court of Appeals has been seen in the press as potentially undermining the recent USPTO decision to cancel six trademark registrations for “Redskins” by the Washington NFL team, but as is often the case with complex and lengthy legal campaigns, things are not always what they appear. In a wide-ranging sit-down interview in Portland with Jacqueline Keeler, founder of Eradicating Offensive Native Mascotry.Tam discusses his support for the Change the Mascot Campaign, the race-based connections behind certain legal decisions, the curious positioning of his case in the courts and the press, the free speech versus commercial speech argument and the difference between a trademark denial and a trademark cancellation.

Keeler: Many people in Indian country were dismayed by news of your case. Do you have any practical thoughts to share?

Tam: I've been a long-time supporter of the Change the Name campaign and obviously we have differing opinions but it's a pretty obscure and complicated part of law.

I asked my attorneys this morning when they finally had a chance to call to give me a recap, I asked them, ‘If you were arguing in the other case [Pro-Football Inc. v. Amanda Blackhorse et al.] what would you do and what kind of things would need to be done? Of course, ours is not even final it is still in process. But we have a lot of interesting insight [Tam’s attorneys met with the Pro Football legal team] which I definitely would be more than happy to share with the Blackhorse counsel because as a racial/social justice advocate, I realize that in the rush to break the story a lot of misinformation has been shared by the media.

It's sad, I mean there was The New York Times article that was released, and they supposedly had quotes from me. I didn't talk to them and so everything they attributed to me was inaccurate. It's just incredibly frustrating because the band or I become the target for a lot of frustrated thinking, as if we had different intentions than what actually occurred in court or in the last six years of filings.

Could you provide an overview of case? A quick history of your trademark appeal?

This began about six-and-a-half years ago. We had just come from a national tour and our attorney at the time recommended we register a trademark. He said it's very common for bands to do ... and major record labels will not work with an artist if they can't register their name because licensing deals and other things depend on it.

We got a rejection letter from the USPTO probably about two months after we submitted. It said we were denied because our name was disparaging to persons of Asian descent. There is a two-part test for this to determine if something is disparaging. One of the main criteria is that a substantial composite of the reference group find it disparaging. I asked my attorney, ‘Who did they find that was in the substantial composite? Where are the Asian Americans they found?’ They said, ‘Nobody, but they did quote UrbanDictionary.com and posted a picture of Miley Cyrus pulling her eyes back in a slant eye gesture.’

They quoted Urban Dictionary? [Editor’s note: Urban Dictionary is a crowd-sourced, online dictionary of slang words and phrases that is a parody of Dictionary.com]

They hung their legal argument on that source. I was like, ‘Is this a practical joke?’ You can't even use that in a junior high classroom. He said, “No, this is in the actual court document.’ My attorney said, ‘I think we can fight this as they are totally off base. They don't even see that not only are you all Asian but you're widely supported by the community.’

He did some prodding into other cases that faced similar battles like Heeb media, the Jewish magazine. They got the trademark for clothing but were denied for the magazine. Dykes on Bikes is a feminist, lesbian group that was initially denied. They won, but not in court as the USPTO just withdrew the rejection so they didn't actually set precedent.

He said we had to show number one, there is wide support, and number two, they got their definition wrong. So we went to some activist leaders here in town [Portland, Oregon] and they wrote letters of support. We included about a dozen examples of the Asian American press highlighting our work to fight stereotypes about Asian Americans and then we showed examples of us performing at Asian cultural festivals, anti-racism rallies and that sort of thing. So that was about 100 pages or so of stuff. We sent it to them and we thought this is a really strong case. They should have no problems with this.

The trademark office rejected it again. They included Urban Dictionary again, Miley Cyrus, and a couple of other online dictionary sources like The Racial Slur Database [RSDB.org]. They also said I was cancelled as a speaker at the [2009] Asian American Youth Leadership conference. Which was partially true. They said it was due to controversy over our name.

At that point, the case was horrendously expensive. It was already thousands of dollars. I said, ‘This isn't worth it anymore.’ Why do I need to fight this thing? After looking at a barrage of cases my attorney said, ‘Simon, this is disproportionately used against people from marginalized communities. It's primarily queer communities and people of color who are ruled against.’ The only people who hold trademark registrations for the term Chink are Caucasians. The only people who have been denied are Asians. Same thing with Jap. He said it's actually unfairly applied.