THIS OPINION IS A
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`PRECEDENT OF THE T.T.A.B
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`Mailed:
`September 26, 2013
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
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`Trademark Trial and Appeal Board
`_____
`
`In re Simon Shiao Tam
`_____
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`Serial No. 85472044
`_____
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`Ronald D. Coleman of Goetz Fitzpatrick, LLP for Simon Shiao Tam.
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`Mark Shiner, Trademark Examining Attorney, Law Office 102 (Mitchell Front,
`Managing Attorney).
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`_____
`
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`Before Rogers, Chief Administrative Trademark Judge, and Kuhlke and Taylor,
`Administrative Trademark Judges.
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`Opinion by Kuhlke, Administrative Trademark Judge:
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`Applicant, Simon Shiao Tam, seeks registration on the Principal Register of
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`the mark THE SLANTS in standard characters for services identified as
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`“entertainment in the nature of live performances by a musical band,” in
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`International Class 41.1
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`
`1 Application Serial No. 85472044 was filed on November 14, 2011, under Section 1(a) of the
`Trademark Act, 15 U.S.C. § 1051(a), based on an allegation of first use and use in
`commerce on November 15, 2006.
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`
`

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`Serial No. 85472044
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`
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`Registration has been refused under Section 2(a) of the Trademark Act, 15
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`U.S.C. § 1052(a), on the ground that applicant’s mark “consists of or includes matter
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`which may disparage or bring into contempt or disrepute persons, institutions,
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`beliefs or national symbols under Trademark Act Section 2(a).”2 E.A. Br. p. 3.
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`When the refusal was made final, applicant appealed and requested
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`reconsideration. On December 20, 2012, the examining attorney denied the request
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`for reconsideration. Subsequently, the appeal was resumed and has been fully
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`briefed. We affirm the refusal.
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`Arguments and Evidence
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`
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`The examining attorney contends that THE SLANTS is a highly disparaging
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`reference to people of Asian descent, that it retains this meaning when used in
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`connection with applicant’s services, and that a substantial composite of the
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`referenced group finds it to be disparaging. In support of this contention the
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`examining attorney has submitted several definitions from various dictionaries and
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`reference works that label “slant” as a derogatory word, including the following
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`definitions:
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`Slant/Slant-eye n. a derog. Term for an Oriental person The Cassell
`Dictionary of Slang (1999);
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`Slant 1. A derogatory term used to refer to those of Asian descent.
`More accurately, it tends to refer to anybody with slanted eyes. Urban
`Dictionary (www.urbandictionary.com);
`Slant noun US, derog. and offensive = slant-eye noun. Oxford
`Reference Online www.oxfordreference.com;
`
`2 This is applicant’s second application for the mark THE SLANTS for nearly identical
`services. Application Serial No. 77952263 was also refused under Section 2(a) as
`disparaging. Applicant appealed that refusal to the Board, but the case was dismissed for
`failure to file a brief. E. A. Br. n.1; Office Action n.1 (June 20, 2012).
`2
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`
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`

`
`Serial No. 85472044
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`
`
`Slant noun a. South Asian person US 1942 Offensive The New
`Partridge Dictionary of Slang and Unconventional English Vol. II
`(2006) (http://books.google.com); and
`
`[S]lant a derogatory nickname for any Oriental. From the shape of the
`Oriental eyes. Slang and Euphemism (2d abridged ed. 1991).3
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`In one of the submissions other contextual meanings are included in the
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`
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`definition:
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`Slant n. 1. a. A line, plane, course, or direction that is other than
`perpendicular or horizontal, a slope, b. A sloping thing or piece of
`ground; 2. Printing A virgule; 3. a. A personal point of view or opinion,
`b. A bias; 4. Offensive Slang Used as a disparaging term for a
`person of East Asian birth or descent. The American Heritage
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`3 Other definitions from reference works and websites include:
`
`“Slant-eye, Slant pejorative term for a person of Far Eastern origin (Chinese, Japanese,
`Korean, Vietnamese etc.) Derived from the term for those who have epicanthic folds.” List
`of ethnic slurs (www.wikipedia.org);
`
`“Slant … The noun is from 1655. Derogatory slang sense of ‘Oriental, slant-eyed person’ is
`recorded from 1943, from earlier slant-eyes (1929).” Online Etymology Dictionary
`(www.etymonline.com);
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`“Slant - Asians - Facial Description – referring to the eyes.” Ethnic Slurs
`www.asianjoke.com;
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`“Slant, slanteye, slant-eye. A derogatory reference to Asians, based on the epicanthic fold,
`or flap, over the eyes of some Asian peoples, giving the eyes a slanted look.” The color of
`words: an encyclopaedic dictionary of ethnic bias in the United States (1997);
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`“Forbidden Terminology Derogatory Racial Terms Slant refers to the perceived shape of
`Asian eyelids” 21st Century American English Compendium (3rd rev. ed. 2006);
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`“slope and slant, slanteye(s) an East Asian [including Japanese] or Southeast Asian person
`having the ‘oriental’ epicanthic folds. (Intended and perceived as derogatory. User is
`considered to be racially bigoted. … )” Forbidden American English (1995); and
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`“‘Jap’ is a derogatory term! … And, so are terms like ‘chink’ … and ‘slant.’” Japanese
`American Citizens League Anti-Hate Program www.lacl.org. “The Japanese American
`Citizens League is a national organization whose ongoing mission is to secure and maintain
`the civil rights of Japanese Americans and all others who are victimized by injustice and
`bigotry.” www.jacl.org.
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`3
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`

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`Serial No. 85472044
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`Dictionary of the English Language retrieved from Credo Reference
`www.credoreference.com and Wordnik www.wordnik.com (emphasis
`added).
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`The examining attorney also included printouts from applicant’s web page
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`
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`located at www.myspace.com/theslants, including the one depicted below:
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`Further, the band’s entry in Wikipedia is of record and references that “The
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`band name, The Slants,
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`is derived
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`from an ethnic slur
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`for Asians.”
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`www.wikipedia.org.4 This entry also includes the following quote attributed to
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`applicant: “We want to take on these stereotypes that people have about us, like
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`the slanted eyes, and own them. We’re very proud of being Asian – we’re not going
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`to hide that fact. The reaction from the Asian community has been positive.”
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`4 This Wikipedia entry was attached to the First Office Action (January 6, 2012); therefore,
`applicant had an opportunity to rebut it. In re Cook Medical Technologies LLC, 105
`USPQ2d 1377, 1382 n.2 (TTAB 2012); In re Carrier Consulting Group, 84 USPQ2d 1028,
`1032-33 (TTAB 2007). Applicant did not do so. As will be discussed infra, applicant does
`not dispute the historical pejorative use of the term but, rather, can be characterized as
`intending to embrace and redefine the term.
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`4
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`

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`Serial No. 85472044
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`
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`Finally, the examining attorney submitted printouts of online articles which
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`report that individuals representing Asian groups or in their individual capacity
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`consider the term “slant,” its plural “slants” and even specifically applicant’s mark
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`THE SLANTS to be disparaging terms. A few examples are set forth below:
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` A few years back, the Oregon Commission on Asian Affairs AND
`the Asian American Youth Leadership Conference, both LOCAL
`Oregon organizations, pulled support from the Slants, citing their
`offensive name. I’ve got nothing against the Slants other than their
`name, which is racially offensive… “bigWOWO” at www.bigwowo.com
`(2010) (emphasis in original);
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`Earlier this year, the band experienced first-hand the complex and
`diverse political perspectives of Asian Americans. Young5 was initially
`slated to give the keynote address at the 2009 Asian American Youth
`Leadership Conference in Portland. But some conference supporters
`and attendees felt the name of the band was offensive and racist, and
`out of respect for these opinions the conference organizers decided to
`choose someone less controversial. “The Asian Reporter” (August 4,
`2009);
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`“Young [applicant] called the new band The Slants – a name that has
`been controversial from the start. … It wasn’t until he posted
`advertisements for Asian bandmates and people responded by calling
`him racist that Young realized the name pushed some hot buttons.”
`The Oregonian (December 4, 2010); and
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`Oregon Governor Cancels Asian Band the Slants’ Performance at
`Asian Youth Conference ... However, the OCAA withdrew support of
`the event because they found The Slants’ name to be offensive towards
`the Asian community. Fearing that the action would trigger similar
`responses with other supporters, the AAYLC had no choice but to
`select an alternate speaker and cancel the band’s appearance. “The
`Daily Swarm” http://64.34.174.165/headlines (2010);
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`
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`5 Applicant, Simon Shiao Tam, is also known as Simon Young. See Office Action (January
`6, 2012) p. 57 (www.bigwowo.com/2011/04/the-slants-and-bigwowos-support-of-the-u-s-
`patent-and-trademark-office).
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`5
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`

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`Serial No. 85472044
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`
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`In response to the refusal, applicant submitted the following dictionary
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`definition:6
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`Slant n. 1. a. A line, plane, course, or direction that is other than
`perpendicular or horizontal; a slope. b. A sloping thing or piece of
`ground. 2. Printing A virgule. 3. a. A personal point of view or opinion
`b. a bias 4. Offensive Slang Used as a disparaging term for a person of
`East Asian birth or ancestry.7
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`In addition, applicant submitted four third-party registrations and an
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`application for marks that contain the word “slant.” See Reg. No. 4123704 for the
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`mark SLANT for, inter alia, skateboards, water skis, surf skis, skis, snow boards;
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`Reg. No. 3894536 for the mark SLANT for, inter alia, motion picture film
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`productions, production of radio or television programs; and two marks for serving
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`ware for serving food, the standard character mark SLANT (Reg. No. 3437230) and
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`the design mark
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` (Reg. No. 3437238).8
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`
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`Applicant’s primary contention is that his trademark has been “refused
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`registration on the basis of Applicant’s race … [and given the] failure of proof and
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`misapplication of law, the evidentiary record does not support the PTO’s conclusions
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`6 We only include the noun definitions inasmuch as the verb definitions have less relevance
`to the mark THE SLANTS wherein “slants” is used as a noun, as determined by use of the
`definite article “the” immediately preceding the word “slants.”
`
` 7
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` American Heritage Dictionary of the English Language (http://ahdictionary.com May 2,
`2012). Applicant also submitted the full excerpt of definitions for “slant” from the Oxford
`English Dictionary which includes ten different meanings with the offensive slang meaning
`as the last entry.
`
` 8
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` The fifth example is an application (Serial No. 85269787) and, as such, is of limited
`probative value. Glamorene Products Corp. v. Earl Grissmer Co., Inc., 203 USPQ 1090,
`1092 n.5 (TTAB 1979) (an application is evidence only of its filing).
`6
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`

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`Serial No. 85472044
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`that the Application for registration of THE SLANTS should be denied.” App. Br.
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`pp. 3-4. Applicant asserts that the examining attorney failed to provide evidence
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`that the mark is “inherently offensive” and takes issue with the examining
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`attorney’s reliance on one possible meaning of the word “slant,” which resulted in
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`the examining attorney’s search parameters using the words “slant” and
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`“derogatory” to “confirm” his refusal. App. Br. pp. 12-14.
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`As to the Office’s evidence pertaining to applicant’s services and manner of
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`use, applicant argues that “the grounds for refusal constituted error [for] at least
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`two reasons … (1) They improperly condition registration on the ethnic background
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`of an applicant, and (2) they amount to an unprecedented prohibition against
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`registration by a particular individual or group of people because of their past use of
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`a mark.” App. Br. p. 17. Specifically, applicant contends that, based on the
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`examining attorney’s logic, non-Asians would be entitled to registration of the word
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`“slants” but Asians are not. Id. Applicant goes on to suggest that the only rebuttal
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`to the examining attorney’s refusal “would have been a submission proving that the
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`band was not entirely Asian and hence entitled to registration, a patently offensive
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`proposition.” App. Br. p. 18. With regard to applicant’s second point concerning its
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`past use, applicant asserts that the refusal is “dependent on the identity of the
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`person, rather than the content of the application.” 9 Id.
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`Applicant concludes that:
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`The refusal, rather, is based on who the Applicant is. It follows that if
`anyone else on earth – Asian or otherwise – submitted an application
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`9 The “past use” is in reference to the examining attorney’s evidence of applicant’s use and
`public perception of that use that is prior to applicant’s November 14, 2011 filing date.
`7
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`

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`Serial No. 85472044
`
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`to register THE SLANTS that was identical to the Application here,
`registration would have been allowed. Concomitantly, Applicant could
`never register THE SLANTS no matter the content of the application.
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`This result would be a surprising and troubling reading of 15 U.S.C.
`§ 1052(a), and one that is not supported by law, policy or common
`sense. Neither the ethnic identity of Applicant, the extent to which he
`associates in his use of the mark with other Asians, the degree to
`which he makes use of his own cultural heritage, or his identity in any
`sense at all should be of relevance concerning registration of THE
`SLANTS as a trademark for “entertainment in the nature of live
`performances by a musical band.”
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`App. Br. p. 19.
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`Law
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`
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`Registration of a mark which consists of matter which may disparage, inter
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`alia, “persons,” is prohibited under Section 2(a) of the Trademark Act. To
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`determine whether a proposed mark is disparaging the Board applies the following
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`two-part test:
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`1) what is the likely meaning of the matter in question, taking into
`account not only dictionary definitions, but also the relationship of the
`matter to the other elements in the mark, the nature of the goods or
`services, and the manner in which the mark is used in the marketplace
`in connection with the goods or services; and
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`2) if that meaning is found to refer to identifiable persons,
`institutions, beliefs or national symbols, whether that meaning may be
`disparaging to a substantial composite of the referenced group.
`
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`In re Lebanese Arak Corp, 94 USPQ2d 1215, 1217 (TTAB 2010);10 In re Heeb Media
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`LLC, 89 USPQ2d 1071, 1074 (TTAB 2008); In re Squaw Valley Development Co., 80
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`10 See the Lebanese Arak decision for a discussion of the various provisions of Section 2(a)
`and the differentiation between terms asserted to be disparaging and those asserted to be
`scandalous.
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`8
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`

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`Serial No. 85472044
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`USPQ2d 1264, 1267 (TTAB 2006). The burden of proving that a mark is
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`disparaging rests with the USPTO. Squaw Valley, 80 USPQ2d at 1271.
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`Whether a proposed mark is disparaging must be determined from the
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`standpoint of a substantial composite of the referenced group (although not
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`necessarily a majority) in the context of contemporary attitudes. Squaw Valley, 80
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`USPQ2d at 1269; Harjo v. Pro-Football, Inc., 50 USPQ2d 1705, 1758 (TTAB 1999),
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`rev’d on other grounds 284 F. Supp. 2d 96, 68 USPQ2d 1225 (D.D.C. 2003).
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`Depending on the facts of the case, a proposed mark may be: (1) an innocuous
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`term that in the context of the goods or services is disparaging, Lebanese Arak, 94
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`USPQ2d at 1223 (likely meaning of KHORAN is the Islamic holy text and use for
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`wine disparages religion and beliefs of Muslim-Americans); see also Doughboy
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`Industries, Inc. v. Reese Chemical Co., 88 USPQ 227 (PTO Exmr. In Chief 1951)
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`(Doughboy refers to World War I American soldier as reinforced by picture of soldier
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`on packaging and use on “a prophylactic preparation for the prevention of venereal
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`diseases” disparages the soldiers); (2) a disparaging term that may have a non-
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`disparaging meaning in a specific context, Squaw Valley, 80 USPQ2d 1264
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`(SQUAW when used with ski-related goods and services means Squaw Valley ski
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`resort under the first part of the test, but disparaging meaning remains as to other
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`non ski-related goods and services); or (3) a disparaging term that has no non-
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`disparaging meanings in any context, and remains disparaging despite the
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`applicant’s goods or services, actual use or intent, In re Heeb Media LLC, 89
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`USPQ2d 1071 (TTAB 2008) (applicant’s good intentions and inoffensive goods and
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`9
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`

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`Serial No. 85472044
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`services do not obviate finding that HEEB is disparaging in context of the goods and
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`services; and mixed opinion among members of the referenced group does not erase
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`the perception of a substantial composite who find it disparaging).
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`Findings/Analysis
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`We must first determine, based on the evidence of record, the “likely
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`meaning” of THE SLANTS; and then, if there is a meaning that invokes a group of
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`persons, turn to consider whether that meaning may be disparaging to a substantial
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`composite of the referenced group.
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`What is the likely meaning?
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`The mere fact that the term has several meanings, even when many may be
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`innocuous, does not, as applicant seems to argue, foreclose the possibility that the
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`proposed mark is disparaging to a group of persons.11 When we take into account
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`the “nature of the identified services,” in this case, live performances by a musical
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`band, we are faced with a term that necessarily identifies people, i.e., the live
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`performers. Thus, those who attend the live performances will necessarily
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`understand THE SLANTS to refer to the persons who comprise the musical band.
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`Further, we must consider the “manner in which the mark is used in the
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`marketplace in connection with the services,” Lebanese Arak, 94 USPQ2d at 1217,
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`which the record in this case shows to involve touting the slang meaning of “slants.”
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`11 It appears to be applicant’s position that a term is “inherently disparaging” when there is
`only one meaning for the word and that meaning is disparaging. However, when there are
`multiple definitions of a word and the manner of use of the word in the marketplace only
`points to the disparaging meaning, the term cannot be saved by the other irrelevant
`meanings.
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`10
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`

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`Serial No. 85472044
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`Thus, it is abundantly clear from the record not only that THE SLANTS, used for
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`the identified services, would have the “likely meaning” of people of Asian descent
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`but also that such meaning has been so perceived and has prompted significant
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`responses by prospective attendees or hosts of the band’s performances. The
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`evidence of public perception of the meaning of THE SLANTS, as used in connection
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`with applicant’s services, shows that meaning to be a derogatory reference to people
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`of Asian descent.
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`Applicant argues that 1) the proposed mark is not inherently disparaging and
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`there are no additional elements to make it so, and 2) there is nothing about the
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`services that make it disparaging. The problem with applicant’s analysis is that it
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`ignores “the manner in which the mark is used in the marketplace.” Id. The
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`musical group, in its advertising and on its website, promotes the “likely meaning”
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`of the mark to be people of Asian descent by, for example, displaying the wording
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`“THE SLANTS” next to a depiction of an Asian woman, utilizing rising sun imagery
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`and using a stylized dragon image. In addition, applicant actively seeks to associate
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`his services with this meaning as a way to embrace this slang meaning and to “own”
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`the stereotype represented by THE SLANTS. That applicant, or even the entire
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`band, may be willing to take on the disparaging term as a band name, in what may
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`be considered an attempt not to disparage, but rather to wrest “ownership” of the
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`term from those who might use it with the intent to disparage, and that some
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`members of the referenced group may support applicant’s use, does not mean that
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`all members of the referenced group of persons share applicant’s view. In Heeb
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`11
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`

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`Serial No. 85472044
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`Media, 89 USPQ2d at 1077, we faced and rejected a similar argument, holding that
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`“[t]he fact that applicant has good intentions with its use of the term does not
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`obviate the fact that a substantial composite of the referenced group find the term
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`objectionable.”
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`Applicant contends that the examining attorney based his conclusion as to
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`“likely meaning” on the fact that “applicant is a founding member of a band (the
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`Slants) that is self-described as being composed of members of Asian descent.” App.
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`Br. p. 4, quoting examining attorney’s brief. Applicant argues further that:
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`The Examining Attorney’s rationale turned the entire policy
`justification for Section 2(a) on its head. It was a refusal to register
`based on the ethnic background of Applicant and his associates that
`was offensive. Unless reversed by the Board this formulation
`inevitably will
`involve the Patent and Trademark Office
`in
`inappropriate and constitutionally suspect inquiries concerning the
`ethnicity of applicants, their associates and their activities.
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`App. Br. p. 4.
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`
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`Applicant is effectively arguing that because he actively seeks to convey a
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`message that he has taken ownership of the term and its meaning, and intends no
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`disparagement of members of the referenced group, the Office is prohibited from
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`finding that THE SLANTS is disparaging to others, precisely because of applicant’s
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`race. In other words, applicant intentionally adopted the mark because it is
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`disparaging to some, but we should ignore that because he is Asian and should not
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`be perceived as intending to disparage other Asians but, rather, as redefining the
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`term in a positive way. In essence, applicant does not address the injury that use of
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`THE SLANTS may cause to other members of the referenced group and instead
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`
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`12
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`

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`Serial No. 85472044
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`focuses on the asserted injury to himself, which he attributes to the examining
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`attorney’s improper consideration of his ethnicity. In the same way the particular
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`ethnicity of the people behind the corporate applicant in Heeb Media did not serve
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`to obviate or remove the disparaging nature of the term for others, here, too,
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`applicant’s ethnicity does not make his use unlikely to be perceived as conveying
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`the disparaging meaning of the term SLANTS for Asian Americans.
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`
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`The focus of the inquiry into whether a mark is disparaging is not on
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`applicant’s race but rather on the referenced group’s perception of the likely
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`meaning of the mark.12 The evidence clearly shows both that members of the
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`referenced group ascribe the derogatory meaning based on applicant’s manner of
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`use and that members of the referenced group find it objectionable. There are no
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`“other elements” in the mark to affect its meaning, and there is nothing about the
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`way the mark is used in the marketplace from which one would understand the
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`term as meaning anything other than an Asian person. Thus, the refusal is
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`properly based on the perceptions of the referenced group and not on applicant’s or
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`his band-mates’ ethnic background.
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`
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`The interpretation of “slant” as meaning “person of Asian descent” (as
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`opposed to other definitions of this word) arises because applicant’s mark is used in
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`a manner to mean “person of Asian descent.” Applicant cannot claim ownership
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`and redefine the term without a use that acknowledges the meaning that must be
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`overcome. However, it is very important to note that a finding that THE SLANTS
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`12 Section 2(a), 15 U.S.C. § 1052(a) focuses on the nature of the mark, not the applicant:
`“No trademark . . . shall be refused registration . . . on account of its nature unless it . . .
`[c]onsists of or comprises . . . matter which may disparage . . . .” (emphasis added).
`13
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`

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`Serial No. 85472044
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`is disparaging is not dependent on applicant’s ethnicity, but on the circumstances
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`related to his use of the term. An application by a band comprised of non-Asian-
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`Americans called THE SLANTS that displayed the mark next to the imagery used
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`by applicant shown supra would also be subject to a refusal under Section 2(a).
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`
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` Finally, applicant’s objection that the evidentiary record includes applicant’s
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`“past use,” (i.e., use prior to the filing date of this application) and that such
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`evidence is not within the four corners of the application, ignores the first prong of
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`the test where we look to the “manner of use” which necessarily goes beyond the
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`“four corners” of the application. Moreover, a determination about the view of the
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`referenced group requires the USPTO to go outside the four corners of the
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`application even if only to reference a dictionary definition that labels a term as
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`derogatory. As to the date of the evidence, applicant bases his application on his
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`use of the mark since 2006 and all evidence from then until the present is
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`relevant.13 Notably, applicant has not submitted evidence rebutting the evidence of
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`13 Regarding the four corners of an application, in its brief, applicant acknowledges in
`general that specimens may demonstrate disparaging use. App. Br. p. 10. As noted earlier,
`applicant abandoned his prior application by failing to file a brief on ex parte appeal.
`Applicant then filed this application, presumably with different specimens of use. As noted
`by the examining attorney:
`
`
`[T]hat applicant cleverly chose specimens that avoided associations with
`Asians or Asian culture is not evidence that the mark is not used in a way to
`conjure up the derogatory meaning and to be disparaging to Asians. … It is
`worth mentioning that applicant appears to have reversed course on its
`arguments for registrability, arguing in the prior application that because the
`applied-for mark was being used by Asian-Americans as a self-descriptor, it
`could not be disparaging, while in this case arguing that there is no
`indication in the application that the mark is in any way associated with
`Asians or Asian-Americans. … Applicant’s argument that the Office is
`limited to the four-corners of the application in determining the disparaging
`nature of the mark is too clever by half. Were applicant’s theory correct, any
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`Serial No. 85472044
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`likely meaning, to support, for example, the proposition that due to applicant’s
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`change in its manner of use members of the referenced group no longer perceive it
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`as having a disparaging meaning.
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`Is it disparaging to a substantial composite?
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`
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`Having determined the likely meaning (in the context of the goods and
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`services and how applicant uses the mark), we look to the second prong: is the mark
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`disparaging to a substantial composite of the referenced group? The record
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`establishes that the slang term “slant” or its plural “slants,” when used to indicate
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`ethnicity, is disparaging to a substantial composite of the referenced group.
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`
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`While there is some mention in the record of support for applicant’s mark in
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`the Asian community (to be clear, quoted statements from applicant noting such
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`support), “[o]ur consideration of whether the term is disparaging is not restricted to
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`smart applicant (or smart attorney) could easily draft an identification of
`goods and services that skates around any mention of a group or persons
`associated with a particular term, while at the same time, using the mark in
`such a way as to associate the mark with the disparaged group. Office Action
`(June 20, 2012).
`
`
`In response to the examining attorney, applicant, in its Request for Reconsideration, states
`that the refusal:
`
`
`… is premised entirely on outside evidence of Applicant’s aggressively Asian-
`themed artistic and commercial identity as used in the past with the mark.
`[and the refusal is based on] his use of the mark in circumstances not
`reflected in the Application but relied on as grounds for refusal in a previous
`application [that has] been deemed offensive by third parties. Req. Recon.
`pp. 6-7.
`
`
`Applicant’s own actions highlight the wisdom of our well-settled test for determining
`whether a mark is disparaging, which requires not only an assessment of information on
`the “four corners” of the application, such as the mark and the goods or services, but also
`looks at the manner in which the applicant uses the mark. Indeed, we also look at an
`applicant’s manner of use to inform analysis of other types of refusals, such as those based
`on genericness. See, e.g., In re DNI Holdings Ltd., 77 USPQ2d 1435, 1439-40 (TTAB 2005).
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`Serial No. 85472044
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`the perception of applicant’s” fans who have no objection to the name of applicant’s
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`band. Heeb Media, 89 USPQ2d 1077. Rather, we are charged with taking into
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`account the views of the entire referenced group who may encounter applicant’s
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`music entertainment services in any ordinary course of trade for the identified
`
`services. Thus, all members of the Asian-American public may encounter the mark
`
`THE SLANTS in advertising in newspapers, billboards or on a website.
`
`
`
`The dictionary definitions, reference works and all other evidence
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`unanimously categorize the word “slant,” when meaning a person of Asian descent,
`
`as disparaging. Moreover, the record includes evidence of individuals and groups in
`
`the Asian community objecting to use of the term in the context of applicant’s band.
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`Taken as a whole we find the record contains substantial evidence to support the
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`refusal. Squaw Valley, 80 USPQ2d at 1272. Finally, applicant does not dispute
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`that the band’s name is derived from an ethnic slur and the evidence thereof stands
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`unrebutted.
`
`
`
`The fact that applicant has good intentions underlying his use of the term
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`does not obviate the fact that a substantial composite of the referenced group find
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`the term objectionable. Heeb Media, 89 USPQ2d at 1077. As the examining
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`attorney states “while applicant may not find the term [disparaging], applicant does
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`not speak for the entire community of persons of Asian descent and the evidence
`
`indicates that there is still a substantial composite of persons who find the term in
`
`the applied-for mark offensive.” Office Action (January 6, 2012). Thus, despite
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`applicant’s assertion that “this is not yet another case of a member of an ethnic
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`Serial No. 85472044
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`group seeking registration of a supposedly offensive slur on the ground that group
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`members, or he in particular, have ‘embraced’ the term” (App. Br. p. 3), in fact it is
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`just such a case.
`
`Applicant’s argument that other SLANT marks have been registered merely
`
`underscores why, in cases such as these, where a term may have different meanings
`
`depending on the context, the USPTO looks to the manner of use to ascertain
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`whether potential consumers would perceive the term as disparaging. None of the
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`marks in these third-party registrations refer to people.
`
`We emphasize that this decision only pertains to applicant’s right to register
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`the term and “it is clear that the PTO’s refusal to register [applicant’s] mark does
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`not affect [his] right to use it. No conduct is proscribed, and no tangible form of
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`expression is suppressed. Consequently, [applicant’s] First Amendment rights
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`would not be abridged by the refusal to register [his] mark.” In re McGinley, 211
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`USPQ at 672, citing Holiday Inn v. Holiday Inn, Inc., 534 F.2d 312, 189 USPQ 630,
`
`635 n.6 (CCPA 1976). See also Mavety, 31 USPQ2d at 1928. This case is solely
`
`about whether the applicant may “call upon the resources of the federal
`
`government” to obtain federal registration of the mark on the Principal Register in
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`order to assist applicant in enforcing the mark. See In re Fox, 702 F.3d 633, 105
`
`USPQ2d 1247, 1252. Because we find it disparagi