Appeal from the refusal of the Trademark Trial and Appeal Board of the USPTO's refusal to register the mark THE SLANTS on the ground that it is derogatory, i.e., an ethnic slur prohibited under §2(a) of the Lanham Act. From the introductory section:
Contrary to the repeated mischaracterizations offered by the Board and the Examiner, this appeal is not premised on a member of an ethnic group claiming to“reappropriate” a supposedly offensive ethnic-based slur. This argument, rejected in In re Heeb Media LLC, 89 USPQ2d 1071, 2008 WL 5065114 (TTAB 2008), has never been made in connection with the 044 Application. This appeal concerns something more pernicious, albeit more subtle: The express use of a constitutionally suspect race-based criterion – i.e., the Applicant’s ethnicity – to bar him from registering a mark deemed derogatory under §2(a), coupled with a misrepresentation of the evidentiary record by the Board that obfuscates the Examiner’s admission that he did just that.
