Asian-American band The Slants triumphed this week when the U.S. Supreme Court struck down part of a law banning offensive trademarks. The ruling, hailed as a landmark victory for freedom of expression, has inspired Canadian free-speech proponents and Canadian bands who've faced similar treatment north of the border.
For the members of Portland-based The Slants, their name transforms a derisive, racist term into a badge of pride, according to Simon Tam, founder of the dance-rock troupe.
Nevertheless, the name sparked an eight-year-long legal battle with the U.S. Patent and Trademark Office, after the group's request to trademark the name was denied on the grounds that the term disparaged Asians.
Canadian Hank Bielanski has had a similar experience with his Oshawa, Ont.–based heavy metal rock band God Helmet.
Bielanski filed to trademark God Helmet with the Canadian Intellectual Property Office after the band first formed in 2012. But the application was rejected by an examiner as an obscenity, with no further explanation.
The thought that God Helmet would be considered offensive "never crossed my mind," Bielanski told CBC News on Friday.
The name, he said, was inspired by the experimental device — developed at Laurentian University in Bielandski's hometown of Sudbury — that uses electromagnetic fields to stimulate the brain to purportedly induce a spiritual experience in the wearer.
"I'm still kind of in shock about [the rejection], to be honest with you. It's pretty surreal," Bielanski said.
According to entertainment lawyer and trademark agent Julie MacDonell, Canada lacks an accessible escalation process when a trademark application is classified as an obscenity and rejected.
"You can speak to a manager and that's about as far as it gets, unless you take on a big [federal] litigation case and in most situations, the client is not prepared to do that to push the law," said MacDonell, founder of The Trademark Group currently representing God Helmet and others whose trademark applications have been rejected.
"It comes down to a subjective call by the assigned examiner at the trademark office … Something may pass with one examiner while it may have got stopped by another one. There's no committee or panel that considers obscenity issues."
Even for those not expecting to make it big, trademarking a band name is important for a variety of reasons, from establishing a distinctive artistic brand to safeguarding intellectual property to simply being able to sell merchandise under protection.
"You don't want someone stealing your band logo and putting it on their own merchandise and selling it," said Bielanski.
Pushing forward freedom of speech
Canada continues to be very conservative with approving trademark registrations and "hasn't yet had a case to push the obscenity rules, which are really quite vague and, I think, too broad," MacDonell said.
Slants founder Tam also noted that broad-based assumptions made by the U.S. trademark office were part of the problem in the case of his band.
'The cure for hate speech isn't censorship. It's better speech and more nuanced speech.' - Simon Tam, The Slants
"[Asians are] not some monolithic group… You can't just say this term offends Asian-Americans. The reality is you can't just put us in one convenient box and shut it down," he told CBC Radio's q this week.
Even if a name is offensive, the law should favour freedom of expression, he said.
- Opportunities abound in changing Cleveland Indians name and brand, say experts
- Supreme Court rejects Redskins appeal in offensive trademark case
- Indigenous critic Jesse Wente: 'We are not your mascots, we are human beings'
"The thing about protecting free speech is that it often times involves protecting the speech of people you find disagreeable or even hateful. But it doesn't mean that we shut them down entirely, because the cure for hate speech isn't censorship. It's better speech and more nuanced speech," Tam said.
"If people want to [choose] these kind of offensive, controversial names, that's fine. They just have to understand there's a social consequence to that. That might mean backlash in the marketplace. That's the beautiful thing about it because then we can have conversations about it."
A number of Canadians artists have, for instance, recently engaged in high-profile — and sometimes heated — discussions about offensive band names. Inuk throat singer Tanya Tagaq is prominent among those challenging non-Indigenous reflections of Indigenous culture and publicly called out bands like Get Inuit and Eskimeaux, which ultimately changed its name.
Meanwhile, Calgary post-punk band Viet Cong agreed to change its name to Preoccupations in 2015 after a widespread outcry.
Tam, who said he thought the name Viet Cong was offensive, pointed out that the controversy helped revive discussion about the concerns of the Vietnamese and Southeast-Asian diaspora.
"That became a powerful thing because [Asian] issues came to the forefront once more," he said.
Bielanski — who says he hopes this week's U.S. decision will lead to change in Canada — feels that thought-provoking discomfort that ultimately starts a conversation goes hand in hand with artistic creation.
"It's rock and roll music — it's supposed to be edgy," he said.
"If I'm not offending someone a little bit, I feel like I'm not totally doing my job. It's about making people think… As musicians [and] artists, we're here to filter what we see in society and put it back into your face."