They get their day in court.
http://www.scotusblog.com/2016/12/symposium-free-speech-argument-registering-disparaging-trademarks/
http://www.scotusblog.com/2016/12/symposium-free-speech-argument-registering-disparaging-trademarks/
In Lee v. Tam, the Supreme Court will consider a request by Simon Tam, an activist and the founder of an Asian rock band, to register his band’s name, “THE SLANTS,” as a federally protected trademark. The dispute in this case centers on a relatively obscure provision of the federal trademark statute, which denies registration to marks that “may disparage” individuals, institutions, beliefs or national symbols. Tam contends that his band’s name challenges stigmatizing stereotypes, but the U.S. Patent and Trademark Office denied registration after finding THE SLANTS disparaging to people of Asian ancestry. To Tam, the result is unconstitutional viewpoint discrimination and suppression of speech – all the more harmful and arbitrary because of his record of political activism and advocacy on behalf of Asian-American groups.
Tam’s case is highly unusual. As Asian-American groups pointed out in their “friend of the court” brief, personal support for Tam shouldn’t blind us to the commercial realities of trademarks. By choosing THE SLANTS as a band name, Tam asserts he is following the progressive tradition of reappropriation, whereby members of minority groups reclaim slurs and epithets and turn the insults into badges of pride. But associating trademark protection with reappropriation is a confounding way to reconcile trademark rights and speech interests. Cultural reappropriation efforts have rarely – if ever – succeeded because activists sought trademark rights for disparaging words. Instead, the overwhelming purpose of federal trademark registration is commerce, unrelated to any high-minded expressive goal.
