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An Asian-American Musician's Five-Year Battle to Get His 'Offensive' Band Name Trademarked

The US government told Simon Tam that the name of his band the Slants was too racist to trademark, but he thinks a bunch of white people shouldn't be the ones to decide that.

by Allie Conti
19 August 2015, 3:00pm

Image via the Slants

Simon Tam grew up spending most of his time bussing tables and doing kitchen prep work in his parents' San Diego restaurant. The son of two Chinese immigrants who had survived communism—his father perfected the art of making wontons while homeless in Hong Kong—the future musician also grew up understanding the value of perseverance.

From the first day of kindergarten, Tam told me, he experienced racism. Teachers told him not to speak his native tongue at home, and he still has a scar on the top of his head from getting hit by rocks while being called "Jap" or "gook." It wasn't until much later, when he was an adult living in Portland, that he came around to embracing his roots, after watching Oren Ishii and her Crazy 88s being portrayed as cool and confident in Kill Bill.

"I started thinking about my own art—music -- and how many Asian musicians I could think of," he says. "There was that one random dude in Smashing Pumpkins and that was it. If there really are 17 million of us, how come we're not in the charts or in Billboard magazine?"

That's how, in 2006, he came to form the Slants, which he describes as "Chinatown dance rock." But when he applied to trademark his group's name in 2010, he ran into some problems. Even though all of the members of his band are Asian-American, Tam was told he was being racist and violating the part of the Lanham Act that prevents people from trademarking "immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute."

That rule is open to interpretation, and some trademarks includes words and phrases many would consider offensive—for instance the name of the NFL team the Washington Redskins, a trademark that is currently being fought over in the courts.

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Tam's battle to get the Slants' name legal recognition has consumed five years of his life and cost him thousands of dollars. There will be an oral hearing at the US Court of Appeals for the Federal Circuit on October 2 in Washington, DC. I recently called him to see how hopeful he was that he'd finally win.

VICE: When you first turned in an application to trademark the Slants, did you ever dream you might be rejected?
Simon Tam: I did not think it was possible at all. it completely took me by surprise. I did not know the law existed. The Washington Redskins had their trademark, and [so did] all kinds of things that weren't the most politically correct. At the time we applied, I had just done a North American tour playing for more than 100 Asian-American events. And we had just done an album where we had donated 100 percent of the profits to Asian-American women with cancer. The press was giving us love, saying we were kicking down stereotypes. So when the Trademark Office made their decision it was like: What? The only thing they showed was an Urban Dictionary.com definition and a photo of Miley Cyrus and Toby Keith pulling their eyes back in a gesture, so I thought, "Let's fight this thing."

Did they ever come up with more legitimate evidence that the term Slants was offensive than Urban Dictionary?
They did a couple of years down the line—after we responded and had internment camp survivors write in. That's when they came back with two things: They had an internet article that falsely stated that our band's performance was canceled due to controversy at this Asian-American leadership conference. And they found some White Supremacist message boards and said they used the term in a disparaging manner. So my attorney actually called the Trademark Office attorney and asked, "What is going on here? What do you guys need to prove these guys aren't offensive?"

What did they ask you to do?
The Trademark Office came back with a demand list they thought was impossible because it would be so expensive. They said we needed a big, national, independently conducted survey that showed that the majority of Asian-Americans support what [we're] doing. They said we probably needed more experts who could talk about the history of the word, and that we needed to deal with the news article about our show being cancelled. So we went back on the hunt. We worked with all that stuff.

We got two surveys—the big one said 92 percent they surveyed supported our use of the name and only 8 percent found it disparaging, which was far less than any survey ever conducted on this type of case in the history of the country. We got an editor at the new American Oxford Dictionary who wrote a 70-page report saying [slants] was obscure when it was used and that these days it's more commonly used in activism and empowerment. And we got a member of the steering committee for the conference to say our show was never canceled due to our name, it was canceled because they didn't have a concert that year. And then we supplied them with another 2,000 pages of evidence. They said they couldn't trust the study and pulled a bunch of dictionaries from the 30s and 40s to say [slants] was offensive.

"It would be a bunch of white people debating what's offensive to Asians. That's our legal system."

Who is making the decisions about the name? Is it a group of people or what?
It's been the same examining attorney every time. His name is Mark Shriner—a random white attorney. So for the first five years they did not speak to a single Asian about the issue. In fact, we had a governor-appointed board of Asian-American leaders here in Oregon say, "How come you're not talking to representatives from our community?" They wrote back and said they were committed to diversity and had Asian-Americans who worked at the Trademark Office. That was their response—that they had Asians in the building, not that any of them worked on the case. And the big irony of it can be really prominent when you think about the actual court system itself. When we had the oral hearing first time around in the federal circuit, the courtroom consisted of the attorneys, who are all white, and if I were to go there I wouldn't be allowed to talk. It would be a bunch of white people debating what's offensive to Asians. That's our legal system.

Why should people care about this when other evidence of systemic racism like police brutality and poverty is rampant? Shouldn't your resources be going to something more important?
Well there's a couple of things. After we unleashed a barrage of evidence, wedecided to reframe the conversation and submitted the second application that our attorney called "race-neutral." In other words, it didn't say anything about us being Asian. The only thing Asian about it was my name. They gave us the same examining attorney, and he just copied and pasted his response. You're not supposed to do that. We wrote back and said, "You've approved 'slant' many times before, why not this time?'" They said basically we were too Asian—that we used an Asian woman on the cover of an album, that we used dragons.

"I think racism as a structure is extremely complex, and we have to use small victories to build momentum."

In other words, if I were white and fired my band members and replaced them, we wouldn't hit that Asian threshold. And I think it's wrong to deny people their rights based on their race. And it's a literal definition of systematic racism, right? The system is denying rights. I'm very much of the mindset that Martin Luther King, Jr. had: An injustice anywhere is a threat to justice everywhere. If you look at the law the Trademark Office is using against me, it's been disproportionately used against minorities, artists, people of color, the queer community. It is, to me, unacceptable that a law written in the 40s—before the Civil Rights Act—is still being used to suppress minority voices. I think racism as a structure is extremely complex, and we have to use small victories to build momentum.

How much of your personal money have you spent fighting this case?
A pretty good amount. I would say between $10,000 and $15,000, but it would be substantially more if I had not been blessed with having such generous attorneys who were willing to work pro bono. The survey alone would have cost $80,000.

Do you worry that this case will completely overshadow your legacy as a band?
People ask me that all the time, and I think it's already happened. We used to be known as the band that was fighting stereotypes and playing at anime conventions. Now we're known as the band that's stuck in this legal battle. While it definitely is frustrating and takes a little bit of attention away from my art and my music, I don't mind that much. Since this thing started we've done anti-racism work on behalf of city governments, federal prisons—which is really funny because other branches of government have no problem tapping us when they need anti-racism work.

Follow Allie Conti on Twitter.