There has been some press coverage of the intention of my client, The Slants, to appeal the denial of their application to register THE SLANTS. Some of what has been reported is inaccurate or imprecise. This is not the place to argue the appeal, but because the case has garnered some extra-judicial attention and there has been a great deal of extra-judicial misunderstanding, here is a bit of clarification:
No appeal or federal action has been filed; it is merely being prepared. Because this is an appeal from the determination of a federal agency, under 28 USC § 2107(b) the time to appeal is 60 days after the September 26, 2013 date of the order. (This differs from the usual 30 day deadline to appeal from a court order under 28 USC § 2107(a)).
What is also unfortunate is that some reports and commentators have given the impression that the applicant is fighting the PTO’s conclusion that “slants” is an ethnic slur, or that the Slants argue that it was one in the past but is not one any more, along the lines of the unsuccessful TTAB appeal of the PTO’s denial of the HEEB application.
This is error. That was not the applicant’s argument in the TTAB with respect to the application that was actually denied in this proceeding — here’s the Slants’ TTAB brief. I tried to get that across in this earlier post, but I will try again:
The assertion that “slants” is not an ethnic slur, based on evidence that contradicts what the PTO claimed as the evidentiary basis for its determination, was the applicant’s argument — but that was in an earlier application for the same trademark. Indeed, rejection of that argument was, we assert, one basis of the TTAB’s affirmance of the PTO’s refusal to register. We argued in our TTAB brief that in refusing to allow the registration based on the Slants’ second application — the one before the TTAB — the PTO rejected an argument the Slants did not make in its response to the Office Action.
This is not to say that the applicant concedes the underlying substantive point. It does not, but this is not the subject of the appeal. Read More…