Advancing Justice | AAJC Leads Fight to Save Federal Ban On Disparaging Trademarks

Advancing Justice | AAJC stakes a claim in U.S. Supreme Court for both civil rights and free speech.
For Immediate Release
Michelle Boykins (202) 296-2300, ext. 0144

WASHINGTON – Asian Americans Advancing Justice | AAJC (Advancing Justice | AAJC) and eleven Asian American organizations filed an amicus brief in the United States Supreme Court to warn the Court about the dangers of opening the federal trademark program to racial slurs and other disparaging trademarks.

Lee v. Tam involves an Asian American band’s fight against the government’s denial of trademark registration for its name, “The Slants,” based on finding the term disparaging to persons of Asian ancestry. Advancing Justice | AAJC’s amicus brief represents the first time many Asian American groups have directly spoken up in the case, with the intent to ensure that the interests of civil rights and free speech are not improperly pitted against each other. Attorneys from Emery Celli Brinckerhoff & Abady, LLP provided pro bono assistance on the brief.

The case raises two important issues to the civil rights community—combating slurs and hateful marks that disparage minority groups and supporting the right of minority groups to reclaim and reappropriate historically derogatory terms. Advancing Justice | AAJC is leading a coalition of groups urging the Supreme Court to recognize and protect both interests.

“Words can inspire positive change or incite hate,” said Mee Moua, president and executive director of Advancing Justice | AAJC. “Minority groups have been successful in reappropriating terms in the past, but reclamation cannot come at the cost of dismantling the statutory protections to keep any one individual or commercial entity from owning and profiting off of a disparaging word or term.”

The band’s leader, Simon Tam, has argued that its mark is an effort to reappropriate and reclaim a derogatory anti-Asian slur, fight against stereotypes, and empower the Asian American community. However, not all trademarks involve progressive efforts. Native American groups, for example, are fighting to cancel the federal trademark for the Washington Redskins football team as a trademark degrading to Native Americans.

In denying registration of “The Slants,” the U.S. Patent and Trademark Office relied on a provision of the federal trademark law that rejects the registration of marks which are disparaging to individuals, groups, or institutions. The provision ensures the federal government is not lending support to efforts to profit from the nationwide use of disparaging and hateful marks.

Tam appealed, claiming that insufficient consideration was given to his reclamation mission and the context of his mark. The court of appeals accepted his argument that the federal provision barring disparaging trademarks should be struck down under the First Amendment. 

The brief explains why our communities rely on tools in the law to combat the effects of degrading racial, ethnic, and religious slurs. Recent events highlight that the harms associated with these slurs are very real, with racist rhetoric inciting hate crimes and other violence, including harassment in schools. But the brief also supports communities’ efforts to reclaim hateful language by urging the Court to craft a balanced approach that considers Tam’s requested use for the trademark and the expressive context of his band’s name.

The brief recognizes that progressive artistic efforts to reclaim disparaging terms can be distinguished from non-expressive efforts to profit from trademarks that denigrate minorities and perpetuate harmful racial stereotypes, such as in the Washington Redskins’ case.

The amicus brief was joined by: Asian Americans Advancing Justice | AAJC; Asian Americans Advancing Justice – Atlanta; Asian Americans Advancing Justice – Chicago; Asian Law Alliance; Asian Pacific American Labor Alliance, AFL-CIO; Asian Services in Action, Inc.; The Institute for Asian Pacific American Leadership & Advancement; Laotian American National Alliance; National Council of Asian Pacific Americans; National Federation of Filipino American Associations; OCA – Asian Pacific American Advocates; and Southeast Asia Resource Action Center.

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