Legal Docket: A trademark dispute

NICK EICHER, HOST: It’s Monday morning. We have a new week of programs planned for you on The World and Everything in It from WORLD Radio. Today is the 22nd of July, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Good morning to you!

MUSIC: Fight back rather than just sit back, claw your way through the feedback, don’t get caught in that, don’t get caught in that

EICHER: This song is “Fight Back” by The Slants. It’s the band that fought back all the way to the U.S. Supreme Court in 2017, and won a free-speech victory against the government in a trademark dispute.

REICHARD: As you probably know, I cover every single oral argument the Supreme Court hears each term. And the question always arises in my mind: Who are the people behind the lawsuits? I’m a little bit awed by those who can withstand such a difficult process.

EICHER: We’ve talked about this idea before, that “the process is the punishment.”

REICHARD: Yeah, and I really wish it weren’t that way.

Well, let me refresh you on the case. The question was whether the U.S. Patent and Trademark Office could deny registration of a band called “The Slants.” The office deemed that name disparaging to Asians, and cited for authority a federal law called the Lanham Act, which bans disparagement.

EICHER: And the Supreme Court struck down that portion of law because it violated the First Amendment. It put the government in the position of discriminating against viewpoints with which it disagrees. Conservative Justice Samuel Alito wrote the majority opinion.

REICHARD: The victory was eight years in the making, and I wanted to learn more about what it’s like to be that person who takes on the government. So I called up the band’s front-man, Simon Tam. And as so often happens, I learned Tam’s experience was a lot deeper than what I’d read about in court documents. 

He laid it out in his book titled Slanted: How an Asian American Troublemaker Took on the Supreme Court. And I gained understanding about racial matters that—as a white girl growing up in the Midwest—I’d not considered before.

Here now is part of that conversation. I started by asking him how he came up with the name for the band.

TAM: So I got the name for the band when I started having conversations with people around me. I asked them, you know, what’s something you think all Asian people have in common? And over and over again, the answer was the same. People would say slanted eyes, which I always thought it was interesting because you know, first of all, it’s not true.

Like not all Asian people have slanted eyes, and we’re not the only people on earth to have slanted eyes, but also because we could sing about our perspective or you know, our “slant” on life of what it’s like to be people of color.

Like as a kid, I was ridiculed for having slanted eyes and I thought, how cool would it be to just re-appropriate that, to inject it with pride and empowerment instead of shame?

REICHARD: Describe how your upbringing and background made you alert to assumptions made about you. I know your mom is from Taiwan and your dad is from China.

TAM: I think a lot of my life experience has kind of taught me to try and avoid these kind of upfront assumptions that we make based on stereotypes, based on people’s race, their religion, their political identity, whatever it might be. It’s just so easy to just force people in these convenient categories.

You know, for me, growing up I was the last person to be called on in English class, even though I had the best grade in the class. And I was the first person to be called on in math, even though my math grades are terrible! You know, I was, I was beat up many times, violently attacked for, for looking the way that I do, for having like an Asian face.

Of course these lessons weren’t, you know, all at once. It took me a very long time and I had to go through a lot of different experiences to kind of find this out. But that’s also when I really kind of realized, and I think this probably ultimately informed my, my journey at the Supreme Court, was that you don’t win by shutting other people down. You don’t win by shutting them up, by censoring them, you win by having a discussion by, by actually being able to articulate and engage with people. And that means, you know, working with others and not just trying to push them away.

REICHARD: Was there one particular moment where you realized that most clearly?

TAM: I think one particular moment that jumped out at me was when we were invited to play at the Oregon state penitentiary. Like, the idea of, first of all sending an Asian American band unto prison with one of the highest populations of neo Nazis in the country— most people would think, this is a terrible idea.

But I just had Johnny Cash on my mind. I thought, oh, great. Folsom Prison Blues! This could be our moment!

At the end of this concert, which was amazing by the way, you know we performed for about 2000 inmates. I was approached by someone covered head to toe in swastikas, he had these very large words tattooed across his chest that said, white power. Uh, it, of course I froze. I didn’t really know how to work with that, but the man just says a couple of words to me that breaks right through me. He asked me for an autograph, gives me this piece of paper and he says, “It’s for my daughter.”

And it was then that I could see that humanity within him. And once we actually had a chance to have a conversation and, and just kind of talk about each of our life experiences, we both left changed that day.

Now, that was probably the most powerful experience I’ve ever had as a musician. You know, it’s so easy to get caught up in pessimism and assumptions, but when we actually take the time to have questions rooted in our values, I think we can truly make a difference.

REICHARD: You wanted to register the name The Slants and were denied by the U.S. Patent and Trademark Office. Describe that time. How did you know what to do next?

TAM: Well, to be honest with you, I didn’t know what to do next. I’ve relied heavily on my attorney, but I mean the other part of it is kind of a little bit ridiculous because we had to all of a sudden prove that we weren’t offensive to ourselves. So it’s like, how do you go about doing something like that?

It wasn’t until a couple of years before our case was resolved that, you know, this junior attorney just kind of throws in this First Amendment argument just to see where it goes. And the courts picked up on that right away.

REICHARD: You write about white privilege in your book, and how that phrase isn’t always helpful, gets people defensive. What do you wish everyone understood about it?

TAM: Well, I think the term privilege kind of has this connotation that you get something for nothing, that you’re entitled to something, but it’s much more complex than that.

I think the kind of benefits you get sometimes aren’t articulated. They’re not, they might not be like this net positive. Like you get this royalty check for being white or something like that. I mean, no one’s getting that.

So, that’s kind of ridiculous. To me, it’s more of those things that are not entirely expressed, like getting the benefit of the doubt when you’re applying for a job or getting a loan at a bank or, or something like that. Getting treated a certain way without having to explain yourself. Without having to explain yourself.

For example, when I was in Oregon, I was driving with a Caucasian woman in my car and the police just pulled me over just to make sure she was there by choice. Like they didn’t give me a ticket, they didn’t even talk to me. They just went to the passenger side and say, excuse me, ma’am, are you here of your own will? Are you safe?

It was like kind of absurd to me. Like I wasn’t violating any laws yet. Like, I don’t know if that would happen if she was with somebody of the same race.

You know, it’s like things like that I think people don’t realize that they kind of take a daily toll on people.

And of course there’s, it came to a point where our band was doing really well. I mean we are getting radio play on over 800 stations. We were getting tons of TV and magazine coverage, touring and selling a lot of albums.

At one point I got a record label offer but they wanted to put a condition on it. They wanted to issue me a check for several million dollars on the condition that I kick out my lead singer and replace him with someone who’s white. Because they told me Asian doesn’t sell. But you know, you like they said no one can imagine an Asian lead singer. We need someone who’s white to do it.

But that’s, you know, privilege is just having the ability to ignore all of that and carry on and just say like, oh, well, that’s just the way things are. You just have to work harder at it. It’s like no amount of working hard could change my, my race to get that deal.

REICHARD: I wonder what you think of contemporary pressure to use certain words? For example, with racial groups? And if you could relate that to the word “slant.”

TAM: Yeah. I think people should have a right to identify themselves however they’d like. You know, a word can be used in a very positive manner, like I believe “slant” can be used in a positive or negative manner, but it depends on those kinds of things. And sometimes identity is kind of wrapped up in this as well. It, it has to do with intention, has to do with, with context.

Like for example, my, my mom uses the word oriental. Now, in my particular generation, we would never do that. We wouldn’t call it each other oriental ‘cause it’s, you know, a lot of people see it as offensive, but that’s like the word she knows. And so when she uses it, when she calls me, she’s like, “Oh, you’re just oriental.” I’m not going to be like, mom, you’re racist towards Chinese people. Like that would be kind of weird. Yeah. [Laughs]

REICHARD: Simon Tam is author of the book Slanted: How an Asian American Troublemaker took on the Supreme Court.

And that’s this week’s Legal Docket.

(Photo/Sarah Giffrow/Agence France-Presse, Getty Images)

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