( CNN ) Given that most people could n't tell the difference between a copyright and a trademark , it usually takes something controversial , such as the Washington Redskins ' refusal to change their name , to get people interested in trademark law . This week , a higher court scrutinized a lesser-known trademark -- when the band The Slants sought to protect its name . The Slants are five Asian-American musicians from Portland , Oregon , who pay homage to the '80s on stage -- and homage to their heritage in an ironic way . `` We want to take on stereotypes that people have about us , like the slanted eyes , and own them , '' Simon Shiao Tam , the band 's front-man , said . In other words , the group adopted the Lenny Bruce philosophy of repeating an insulting term until it does n't mean anything anymore . To The Slants , `` slant '' is n't an insult , it is empowering . And more power to them . Unfortunately , a bureaucrat at the U.S. Patent and Trademark Office decided that `` Slant '' was disparaging to Asians , and denied them a trademark registration under the despised ( by me , anyhow ) Section 2 ( a ) of the trademark act . This is the section that lets the government deny trademark protection to a mark that is `` immoral , '' `` scandalous '' or `` disparaging . '' In this case , the latter . But wait a minute . This is n't billionaire Dan Snyder referring to other people as `` Redskins . '' In L'affair Redskins , it is the disparaged group , Native Americans , who are complaining -- not the government deciding on its own that it knows best . In the Slants ' case , these are Asian guys who say `` it does n't bother us , so why should it bother you ? '' And it is n't as if any Asian American groups got involved . This is not the first time that someone has `` taken back '' a marginalizing term in a trademark fight . About 10 years ago , the motorcycle club `` Dykes on Bikes '' was similarly rebuffed , and they fought back and won the right to protect their mark . They made similar arguments that resonated : If they wanted to call themselves `` Dykes on Bikes , '' then what place does the government have in judging that decision ? In another decision , the trademark office initially denied a registration for Buddha Beachwear on the grounds that Buddhists would find it disparaging . But on reconsideration , the Trademark Trial and Appeal Board held that it should go forward stating it is `` imperative that the board be careful to avoid interposing its own judgment for that of Buddhists . '' So why are n't the Slants given the same privileges as Dykes on Bikes or Buddha Beachwear ? It is largely a sign of the times . We find ourselves mired deeper and deeper in a society where people actually get excited to take offense at virtually anything . Given the lingering controversy over the Redskins ' trademark , our five friends from Oregon did n't stand a chance . This decision offends me . For starters , by trying to protect Asians from racism , the court issued a disturbingly racist decision based on the fact that these were , in fact , Asians who intended their band name to invoke their ethnicity . But , if a Sicilian ( like me ) were to seek to register the same exact name , with no such intent , I would enjoy that privilege . This is n't quite Korematsu v. United States ( the decision that authorized putting Asians in internment camps ) , but the decision is quite unprincipled . Even worse , this decision gets the First Amendment wrong . The majority opinion almost flippantly discards the Constitutional issues as much ado about nothing . Essentially it says , `` we did it this way before , so we are going to keep doing it this way . '' Your Constitution got stepped on before , and who are we to take our feet off of it ? If you 're not upset by now , you should be . Well , the court does give us a sort-of dissent styled as `` additional views . '' While not binding , some of our most cherished First Amendment rights grew from the tiny seeds planted by the dissents of Oliver Wendell Holmes . The dissent in this case recognizes the fact that trademarks are commercial speech , which is protected by the First Amendment . It also notes that the government should not be in the business of giving out or withholding benefits on the basis of the content of the recipient 's speech . This is known as the doctrine of `` unconstitutional conditions . '' Since Section 2 ( a ) discriminates against First Amendment protected expression on the basis of its content , the court has called for 2 ( a ) to be , finally , deemed unconstitutional . But , for some reason , it declined to actually go that far . It merely suggested it , without so ruling . And people wonder why my hair is falling out . I guess I will start a protest band and call them `` The Guinea Pigs . '' But , I wo n't be allowed to register that trademark -- although the five Asian guys from The Slants could . Maybe we should just each register the other band 's marks , and trade them after we get past the bureaucrats at the trademark office .
Marc Randazza : Court upholds a trademark denial for Asian-American band A federal appeals court has upheld the right of an Asian American rock group to use their name in connection with its music. He says court is wrong : Trademarks are commercial speech , protected by First Amendment . Ruling a sign or our easily offended times .