On September 26, 2013, the Trademark Trial and Appeal Board (TTAB) issued an opinion in In re Simon Shiao Tam, affirming the examining attorney's refusal to register the mark THE SLANTS on the Principal Register because the mark is disparaging to people of Asian descent. The applicant argued that because he is Asian he should be permitted to register the mark to redefine the term in a positive way. The TTAB rejected this argument, finding instead that the focus of its inquiry should be on how the referenced group will perceive the likely meaning of the mark.

Applicant Simon Shiao Tam (Tam) sought registration of the mark THE SLANTS to be used in connection with his musical band. The examining attorney denied the registration under Section 2(a) of the Trademark Act, finding the mark to consist of matter that may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.

On appeal, the examining attorney argued that the mark:

The examining attorney based these findings on a variety of evidence, including:

Tam argued that the application was denied because the examining attorney improperly considered his race and failed to provide evidence that the mark is inherently offensive.

In considering both arguments, the TTAB noted the two-part test to determine whether a proposed mark is disparaging:

The TTAB found that the likely meaning of the mark THE SLANTS was people of Asian descent because, when taking into account the nature of the services (that is, live performances by a musical band) people attending the live performances would understand THE SLANTS to refer to the people in the band. The TTAB also found that the band promoted the likely meaning of the mark to be people of Asian descent because in its advertising and marketing, the group displayed the mark next to a depiction of an Asian woman, rising sun imagery and a stylized dragon image.

Tam argued that because, he was an Asian, he sought to convey a message of ownership over the term "slants" and intended no disparagement, the Trademark Office should be prohibited from finding the term disparaging to others. Specifically, he argued that because he is Asian, he should be permitted to register the mark to redefine the term in a positive way. The TTAB rejected this argument, finding instead that the focus of the inquiry should be on how the referenced group will perceive the likely meaning of the mark, and that members of the Asian community, both:

The TTAB found the remaining elements of the first prong of the disparaging test also do not work in Tam's favor. It noted there are no other elements in the mark to effect its meaning, and there is nothing about the way the mark is used in the marketplace that would lead a person to believe the mark referred to anything other than an Asian person. Likewise, the Board rejected Tam's arguments that the examining attorney improperly considered his race when reviewing the application, and found instead that the refusal was properly based on the perceptions of the referenced group.

For the second prong of the test, the TTAB found that the meaning was disparaging to a substantial composite of the referenced group because the record established that:

Although Tam may not find the term disparaging, the TTAB recognized that there was a substantial composite of Asian people who find the term offensive.