Episode 774: Unspeakable Trademark

May 26, 2017
Originally published on May 30, 2017 1:33 pm

Warning: This episode has explicit language, for unavoidable and soon-to-be obvious reasons.

Growing up in California, Simon Tam had some tough moments. He was Chinese-American, and in middle school, kids called him all kinds of racial slurs.

Those moments stuck with him.

Simon grew up, and eventually started a band that was beginning to take off. He decided on a band name that said something about being Asian. Something that asserted an identity. He picked "The Slants," as a way to own a stereotype and turn it into something completely different.

There was a problem, though. Other bands started using the same name.

So in 2010, Simon did what artists and companies do when there's confusion over their name. He applied to register for a trademark with the federal government.

But, it was rejected because the U.S. Patent and Trademark Office said it was disparaging to people of Asian descent.

This is the agency that decides what gets to be registered as a trademark. And that involves making all kinds of calls about racial slurs, homophobic putdowns, and sexist language.

Today on the show, a fight over a band name that turns into a fight about free speech. It goes all the way to the Supreme Court.

Music: The Slants' "Endlessly Falling" "From the Heart," and "Faded Dreams." Find us: Twitter/ Facebook.

Subscribe to our show on Apple Podcasts or PocketCast.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

JACOB GOLDSTEIN, HOST:

Warning - today's show has racial slurs and sexually explicit terms. Simon Tam grew up in San Diego.

AILSA CHANG, HOST:

He was Chinese-American. And sometimes that made it tough.

SIMON TAM: It was when I was in middle school and I had to stay behind because I was cleaning up the sports equipment. Next thing you know I was pushed to the ground. And they were kicking me, punching me over and over again, throwing sand in my face. And they kept yelling at me. They kept saying Jap and they kept saying gook (ph). And at one point I finally just snapped and I said, you know what? I'm a chink. Like, if you're going to be racist, at least do it correctly.

CHANG: That moment has always stuck with him.

GOLDSTEIN: He grew up, moved to Oregon, and he started a band. And when he was trying to figure out what to name the band, he wanted to find something that sounded like a band name but that also said something about being Asian, something that asserted his identity.

TAM: So I would ask my friends around Portland, what's something you think all Asians have in common? And they would immediately say slanted eyes, which I found fascinating because I thought, well, you know, it's not true.

CHANG: So he decides to seize that stereotype, own it and turn it into something completely different. He ends up meaning his band The Slants.

GOLDSTEIN: The band starts playing gigs around Portland, playing songs like this.

(SOUNDBITE OF SONG, "ENDLESSLY FALLING")

THE SLANTS: (Singing) Window panes, distorted views. My last love was all you knew.

CHANG: They weren't just musicians who happened to be Asian. They were super into being Asian. They raised money for families in North Korea. They held anti-racism workshops at anime conventions.

GOLDSTEIN: Things were going great. The band started touring more. But then Simon discovered a problem. There were other bands that were also calling themselves The Slants.

TAM: I was in Tucson, Ariz., where some fans of ours bought tickets to see The Slants. They thought it was us.

CHANG: But it wasn't. It was a local band also called The Slants.

GOLDSTEIN: So in 2010, Simon did what artists and, for that matter, companies do when there's confusion over their name. He applied to register a trademark with the federal government so that he could have some control over who could use the name The Slants. A few months later, he got a call from his lawyer.

TAM: He says, hey, Simon, we got a problem with your application.

CHANG: Simon thought, maybe I submitted the wrong paperwork or something.

TAM: He said, no, all of that's fine. But he said the trademark office rejected your application because they said it's disparaging to persons of Asian descent. And I remember I took a moment to think about the term disparaging. I was like, does it mean what I think it means?

CHANG: (Laughter).

TAM: And then I'm like, wait a second. Are they saying we're racist to Asian people? And he says yes.

(SOUNDBITE OF SONG, "ENDLESSLY FALLING")

THE SLANTS: (Singing) All of these feelings, can I be dreaming?

CHANG: Hello and welcome to PLANET MONEY. I'm Ailsa Chang.

GOLDSTEIN: And I'm Jacob Goldstein. There is a government agency that has to make lots of decisions about hate speech, racial slurs, homophobic putdowns and sexist language.

CHANG: Simon Tam got into a fight with this agency, a fight about free speech. And it went all the way to the Supreme Court.

GOLDSTEIN: Put the kids to bed, tie up the horses 'cause it's going to get a little raw.

CHANG: Today on the show we're talking about the U.S. Patent and Trademark Office.

(SOUNDBITE OF THE SLANTS SONG, "ENDLESSLY FALLING")

CHANG: When Simon filed that trademark application in 2010 it went to Alexandria, Va., home of the U.S. Patent and Trademark Office. It's a bland-looking government building.

REBECCAH GAN: And you're in a small office with a window that doesn't open.

GOLDSTEIN: Rebeccah Gan is a trademark lawyer, and she used to work in that building. She didn't handle Simon's application, but she handled thousands like it.

CHANG: It was her job to decide whether to approve those applications. She had to follow a federal law that lets the government reject trademarks that, quote, "may disparage."

GAN: There is government speech happening here. And I think it is a compelling government interest that the government is not speaking in a way that makes people think the government is OK with the content of what is being expressed.

GOLDSTEIN: In other words, when the federal government agrees to register a trademark it is putting a stamp on a name, like, almost literally. You know, when you see that little capital R with a circle around it next to a product name, that is the government saying, yes, we agree to register this trademark, and we're using the power of federal law to protect it.

CHANG: So the question Rebeccah had to answer was when does the government give its stamp of approval? And when was something just too offensive?

GOLDSTEIN: And she didn't have much time to make that call.

GAN: You're roughly given an hour to examine a file. And sometimes some files will take more and sometimes some files will take less.

CHANG: An hour? That's, like, zero time.

GAN: You're talking about a government program that has thousands of applications a year. And people on the outside are very cranky when their applications do not get processed as quickly as possible.

CHANG: I asked to speak with the lawyer at the trademark office who made the call in Simon's case, who looked at his application and said, The Slants? That's offensive. We're not going to give that our stamp of approval. But the trademark office declined my request for an interview, so I asked someone else to walk me through the rejection.

RON COLEMAN: I'm Ron Coleman. I'm a lawyer.

CHANG: And who's your client?

COLEMAN: My client is Simon Tam of The Slants.

CHANG: Can you say that one more time?

COLEMAN: Simon Tam of The Slants.

CHANG: The what?

COLEMAN: The Slants.

CHANG: The what again?

COLEMAN: The Slants. I said it and I am very comfortable saying it.

CHANG: Ron walked me through that rejection letter from the trademark office. And he showed me the very first authority cited in the rejection.

COLEMAN: Urban Dictionary. OK? There's a scholarly resource for you.

CHANG: Urban Dictionary. If you've never seen it, it's online. It's what parents use to look up slang they hear their kids use. And here's Ron Coleman reading how Urban Dictionary defines slant.

COLEMAN: (Reading) A derogatory term used to refer to those of Asian descent.

CHANG: Urban Dictionary is an open forum. Anyone can write anything here, no matter how offensive.

COLEMAN: (Reading) Ting (ph) ping (ph) ting, look at that slant. Five dollar sucky (ph) sucky.

CHANG: Who is this by? GangstaE.

COLEMAN: GangstaE. That's the...

CHANG: That's the authority.

GOLDSTEIN: When Simon Tam saw that this was the response from the U.S. Patent and Trademark Office, he couldn't believe it.

TAM: It was just one of those really kind of surreal moments that wow, the kind of stuff that you could not use in a junior high classroom to support an essay was now being used by the federal government to deny me rights.

CHANG: So Simon starts fighting with the trademark office. He makes the case for how he's using slants in a way that celebrates Asian-American identity. He includes statements from leaders of Asian-American organizations and news stories about the band's activism.

GOLDSTEIN: But the trademark office just keeps saying no, just keeps denying his application. At one point they send him a photocopied page from a 20-year-old book called "Forbidden American English."

COLEMAN: The killer entry - slant, a derogatory nickname for any Oriental from...

CHANG: Oriental? They just called Asian people Orientals in the forbidden English book (laughter)?

COLEMAN: Well, that's a very nice point that you make. But in 1995, I think that's what we were still saying.

CHANG: Oh, no, we weren't.

COLEMAN: Maybe we weren't, but he were.

GOLDSTEIN: All right, Ailsa, I want to say at this point in the show, fine, those seem ridiculous. But it's not just the - whatever, some random 20-year-old book. It's not just Urban Dictionary. I brought in the paper dictionary that we have in the office. It's the New Oxford American Dictionary.

CHANG: OK.

GOLDSTEIN: I'm going to open it to slants. Slang. Slangy. Slant. One of the definitions says (reading) slant, derogatory, a contemptuous term for an East Asian or Southeast Asian person. This is, you know, a valid authority that is saying slant is derogatory. So if this is in the dictionary, like, why are the lawyers at the trademark office citing some random old book and citing Urban Dictionary?

CHANG: Well, that's the way the law works. The trademark office is supposed to reject an application if it uses a term that is disparaging to what's called a substantial composite of some group of people. So in this case a substantial composite of Asians or people of Asian descent. So the trademark office lawyer is citing all these different sources to try to show this idea that slants is derogatory to a widespread amount of people that...

GOLDSTEIN: Like, it's out there. It's out there in lots of different places.

CHANG: That feeling that it's derogatory.

GOLDSTEIN: OK.

CHANG: Rebeccah Gan, the lawyer who used to work at the trademark office, she told me about this one case that really illustrates this. The case was over the word heeb. Heeb...

GOLDSTEIN: Heeb is a slur against Jewish people. I can say that.

CHANG: Exactly. And it's also the name of a magazine by and for Jews. And when Rebecca was working at the trademark office, Heeb applied for a trademark registration.

GAN: I had a subscription to Heeb magazine - right? - so I was not offended, clearly, because I had a subscription.

CHANG: Rebeccah wasn't the lawyer assigned to that case, but because she's Jewish one of her colleagues asked her what she thought.

GAN: I am sure that grandmothers and other folks in the community probably did - does or did feel that he was probably offensive because they grew up with stories of their grandparents getting beaten up and having that insult hurled at them.

CHANG: So she said even though I subscribe to this magazine, I don't think we should give the name Heeb the federal government's stamp of approval. She told her colleague we should deny the application, and that's exactly what happened.

GOLDSTEIN: This is clearly not a science, right? This is clearly like, well, let's think about it, let's ask our colleagues. And this system can lead to what seem like really inconsistent outcomes. You see this in particular with trademarks that are sexually explicit.

CHANG: Like, for example, Rebeccah told me she personally rejected a trademark for the phrase meat holes because she thought it was too dirty, but there are all these other super explicit sexual terms that have been approved by the trademark office. I talked to Megan Carpenter. She's a law professor who studied this, and she listed off a bunch of these approved terms.

MEGAN CARPENTER: Dirty bitch. Drunk ass bitches. Edible crotchless gummy panties. Ego testicle.

GOLDSTEIN: And just to be clear, these are actual names where some lawyer at the government has looked at an application and said, OK, you got it, and registered trademark.

CARPENTER: Flea market hookers. FUPA pouch. Fustercluck mad in the USA.

CHANG: OK. Megan's saying a few things are going on here. One is the process is just a pretty random process. It depends on which lawyer at the trademark office gets assigned to your case, but she's also saying you see meaningful changes as societal sensibilities change.

CARPENTER: I do think we've seen a growing acceptance of terms as language evolves.

GOLDSTEIN: Take the term queer, used to be a slur for gay people and used to get rejected a lot by the trademark office. Then gay people took the word back. You know, there was like a slogan - we're here, we're queer. The word stopped being offensive, and the trademark office started saying yes more often to trademarks that use the word queer.

CHANG: And that is what Simon Tam wants to do with slant, the same thing that gay people did with queer. He wants to take the word back. And for him, this fight over the trademark becomes a way to do that. He thinks the federal government doesn't get to decide what's offensive to Asian Americans, we get to decide for ourselves.

GOLDSTEIN: Simon becomes obsessed with this fight. He starts spending 30, 40 hours a week on the case, starts cutting back his time on music just so he can work on the case more.

TAM: Like, I have my attorney on speed dial, you know? Like, he was in my friends and family top five. It was like that's how often we were talking.

CHANG: Yeah.

TAM: Multiple emails every single day, like hundreds of emails between us.

CHANG: But by the end of 2011, it's clear to Simon that he is never going to convince the trademark office. They just keep saying no.

GOLDSTEIN: So Simon and his lawyers, they come up with a new plan, a new strategy, and this one is much more ambitious. It's not just about the words slants. They decide they're going to attack the law itself. They start to argue that rule that says the government can deny trademark registrations for disparaging terms, that rule itself is a violation of the First Amendment. It violates our right to free speech.

CHANG: I talked about this with Ron Coleman, Simon's lawyer. And I should just say that Ron is Jewish, and he's been called names for being Jewish. So I wanted to know personally how far would he go with this First Amendment argument.

Is there any word you don't think should ever be trademarked?

COLEMAN: Where we are as a society now and where constitutional law is in the year 2017, there can be no word and no image that cannot be registered as a trademark.

CHANG: No word. So kikes?

COLEMAN: Kikes.

CHANG: That can be registered?

COLEMAN: Absolutely.

CHANG: What about chinks?

COLEMAN: Of course.

CHANG: Wetbacks.

COLEMAN: Of course. If you could demonstrate that it is functioning as a trademark, in other words you are selling a product or offering a service in connection with it, it's a trademark.

GOLDSTEIN: Ron and Simon take this First Amendment argument to court, and they lose, but they appeal. And in 2015, a federal appeals court agrees with them. They find that the trademark law is unconstitutional, that it does violate the First Amendment.

CHANG: And the Obama administration appealed that. And the Supreme Court agreed to take the case.

GOLDSTEIN: The oral argument in the case was in January. And, of course, Simon went to Washington, D.C., for it.

(SOUNDBITE OF ARCHIVED RECORDING)

THE SLANTS: (Singing) Sorry if our voice is too raw...

GOLDSTEIN: A few days before, The Slants had a little concert on the steps of the Supreme Court. And then it was the morning of the case. Simon went into the courtroom, and he heard Chief Justice John Roberts announce the case.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: We'll hear argument first this morning in case 15-1293, Lee versus Tam. Mr. Stewart?

CHANG: Simon's sitting there wearing his lucky dinosaur socks. He's thinking about all the work he's done on this case, how it had taken over his entire life. And he realizes at that moment it's all come down to this.

TAM: I was just, I guess, filled with too much emotion to even, like, think clearly for that - for the first few moments anyway. I was like...

CHANG: What do you mean?

TAM: I mean, for me, I was thinking almost almost a decade of my life is culminating to, like, this 55-minute argument.

(SOUNDBITE OF ARCHIVED RECORDING)

SONIA SOTOMAYOR: Then I have a question for you.

GOLDSTEIN: At one point, Justice Sotomayor seems to attack Simon's First Amendment argument.

(SOUNDBITE OF ARCHIVED RECORDING)

SOTOMAYOR: No one's stopping your client from calling itself The Slants. No one's stopping them from advertising themselves that way or signing contracts that way or engaging in any activity.

GOLDSTEIN: The justice is saying, you know, go ahead, call yourselves The Slants. Put it on T-shirts. Shout it from the rooftops. The trademark office isn't stopping you from doing that.

CHANG: But at another point, Justice Kagan seems to come in on the other side. She seems to come to Simon's defense.

(SOUNDBITE OF ARCHIVED RECORDING)

ELENA KAGAN: No, no, no, that's - I said even in a government program, even assuming that this is not just...

CHANG: And here's her point - there's a part of First Amendment law that says the government shouldn't say some viewpoints are OK but others are not. It's something called viewpoint discrimination. And what Justice Kagan is saying here is that maybe the government might be doing this by saying some trademarks are good while others are disparaging.

(SOUNDBITE OF ARCHIVED RECORDING)

KAGAN: You see the point. The point is that I can say good things about something but I can't say bad things about something. And I would have thought that that was a fairly classic case of viewpoint discrimination.

GOLDSTEIN: It's going back and forth this way in the argument. You know, they're debating these theoretical First Amendment implications of the case. But for Simon, the key moment that morning went back to something that was really much more personal. It went back to the reason he decided to call his band The Slants in the first place.

TAM: And at one point, Justice Ruth Bader Ginsburg speaks and the room goes silent.

(SOUNDBITE OF ARCHIVED RECORDING)

RUTH BADER GINSBURG: Does it not count at all that everyone knows that The Slants is using this term not at all to disparage but simply to describe?

UNIDENTIFIED MAN: I think...

GINSBURG: It takes the sting out of the word.

TAM: It was, like, at that moment I - like, here we go. Like, she gets it. She knows what we're trying to do.

CHANG: And then, less than an hour after the argument started, it was all over.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERTS: Thank you, counsel. The case is submitted.

GOLDSTEIN: The Supreme Court's decision in this case is expected any day now, sometime in the next few weeks. And a lot of people are watching this case really closely, including the Washington Redskins, the football team.

CHANG: A few years back, the trademark office canceled the team's trademark registration for Redskins. The office said that's a disparaging term.

GOLDSTEIN: So now the team's rooting for Simon at the Supreme Court. They even filed an amicus brief.

CHANG: That's the legal equivalent of saying we're totally with you, bro.

How do you feel about being on the same side as the Washington Redskins?

TAM: I don't think I'm on the same side as them. I think that the team name is racist. I think it's - I think that Native Americans have made it overwhelmingly clear how they feel about not only that team but all sports in general that use human beings as mascots.

GOLDSTEIN: But, he says, the point of the First Amendment is to protect people who you don't agree with, who aren't on your side.

TAM: That's how free speech works. As a person of color who has experienced a lot of racial discrimination and been the target of a lot of racial slurs, people don't say, oh, wait a second, I have to register a trademark before I can call you chink. They just go ahead and do it. Racists are going to be racists whether they have a registration or not.

CHANG: The Slants recently released a song called "From The Heart." Simon calls it an open letter to the U.S. Patent and Trademark Office. We'll hear it in a minute.

(SOUNDBITE OF DEREK SOMARU, JOHN HUNTER JR AND JONATHAN SLOTT'S "FADED DREAMS")

GOLDSTEIN: If you want to get in touch, you can email us at planetmoney@npr.org or you can find us on Facebook or Twitter.

CHANG: And for those of you listening in the New York area, we would love to see you in person. PLANET MONEY will be performing onstage at the Tape Festival. It's a night of live podcasts and storytelling June 10 in Brooklyn. More info at tapefest.org.

GOLDSTEIN: Our show today was produced by Nick Fountain. The editor is Bryant Urstadt, and our supervising producer is Alex Goldmark. I'm Jacob Goldstein.

CHANG: And I'm Ailsa Chang. Here's The Slants.

(SOUNDBITE OF SONG, "FROM THE HEART")

THE SLANTS: (Singing) Sorry if our notes are too sharp, sorry if our voice is too raw. Don't make the pen a weapon and censor our intelligence until our thoughts mean nothing at all. Sorry if you take offense. You made up rules and played pretend. We know you fear change, it's something so strange, but nothing's going to get in our way. There's no room for your backward feelings and your backyard dealings. We're never going to settle, never going to settle. No, we won't remain silent, know it's our defining moment. We sing from the heart. We sing from the heart. No, we won't be complacent, know it's a rock 'n' roll nation. We sing from the heart. We sing from the heart. Transcript provided by NPR, Copyright NPR.