Following up my colleague Lori Kozak’s blog post from almost one year ago, the Asian-American rock band known as “The Slants” had their day in the highest court of the land on January 18, 2017. The U.S. Supreme Court heard oral arguments from the band’s attorneys that the group’s name should not be barred from federal trademark registration on the basis that their name is offensive to people of Asian ethnicity.
While arguments over band names typically arise between band members, “The Slants” founder, Simon Tam is fighting Section 2(a) of the Lanham Act, which prohibits the registration of a trademark that may disparage persons, institutions, beliefs, or national symbols. Representing Tam, attorney John Connell argued that the band name contains both a commercial and expressive communication, and that Section 2(a) places an undue burden on the latter, which is outside the scope of Congress’ intent to reduce confusion in the marketplace.
On the other hand, Justice Department attorney Malcolm Stewart argued that by granting such trademarks federal protection, the government would in fact be distracting consumers from identifying goods and their sources, and this would actually hinder commerce.
Merchandising, live performances, and fan clubs for artists rely heavily on the strength of an artist’s branding. While the Court recognized that Congress is not preventing “The Slants” from using their name in commerce, the advantages of federal trademark protection have become a necessity for any successful musical act, whether on a major label or as an independent artist. Tam, along with the rest of us (including the Washington Redskins) will eagerly wait for the Court’s decision in this case, which is expected in June.