Another not-safe-for-work story is out there about a trademark registration denied under Section 2(a) of the Lanham Act as “immoral or scandalous.” John Welch and Marc Randazza address the issue brilliantly here and here.
Well, in April of last year, in fact, I wrote about the trademark application for THE SLANTS by a musical band called The Slants. I noted how the certain obviously derisive trademarks, supposedly forbidden under 2(a), aren’t always. It seems to depend on how the political winds blow.
That post was so “brilliant” that I ended representing The Slants pro bono on a new application. And now, once again, it’s up to the TTAB on this. With, yes, a different slant.
The set of relevant documents at the PTO level can be found here. The question is: Can the words THE SLANTS be registered as a trademark… by this applicant, as opposed to any other?
In fact, there are many trademark registrations for the word SLANT. But what if the person who wants to register the mark is Asian? According to the PTO, then the mark may not be registered — or at least not if, in the past, he has been too Asian about being Asian.
The applicant, leader of the musical band The Slants (Simon Tam), seems to be the victim of a policy that has at once narrowed, and broadened, the concept of forbidden “disparaging” trademarks. It has broadened the concept to include any mark that COULD be deemed disparaging, or any user that may ever have, in the past, made “disparaging use” of an otherwise inoffensive word. And it has narrowed the standard so that, as set out in these documents, no matter what Simon Tam does or says in a trademark application, he, personally, is — by all indications — barred forever from registering these words, no matter how he uses them.
A notice of appeal to the TTAB has been filed.
Originally posted 2013-09-28 21:24:28. Republished by Blog Post Promoter