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SIOA Trademark Ruling “Unconstitutional”

The USPTO rejected AFDI’s trademark application based on the following analysis:

(1) “Islamisation” means converting to Islam or “to make Islamic;” and (2), “Stop” would be understood to mean that “action must be taken to cease, or put an end to, converting or making people in America conform to Islam.” Thus, the trademark, according to the “Office Action” ruling, disparaged Muslims and linked them to terrorism. (AFLC)

From WaPo today: The court concludes that “Stop the Islamization of America” mark, as used by its promoters, is likely to be understood as “disparaging to a substantial composite” of Muslims, whether “Islamization” refers to conversion to Islam or to “a political movement to replace man-made laws with the religious laws of Islam.”

The Judge was hostile towards us from the very first (more on the appeal here). If you missed David Yerushalmi’s oral arguments and the constant interruptions, go here.

Just minutes after the ruling down against us, Reuters contacted me. It’s interesting how closely they watch our work — even these somewhat little known, obscure cases.
Reuters: “What reaction do you all have to the court ruling today?”

Here was my full response.

Geller: “I am not surprised by today’s ruling. I expected it. This is a complete whitewash and we knew we would be up against the PC bias in the court. This is clear ongoing evidence of how the federal government and especially the courts, bend over backwards to kowtow and placate Muslim sensitivities. But why turn a blind eye? Because they are afraid of the response. Not from me, of course. The TTAB is not protecting Muslims from our ‘islamophobia’ and/or ‘bigotry’ (because there is none). No, they are afraid of the response from Islamic supremacists and that is the problem.”

Eugene Volokh wrote this of the ruling in the Washington Post:

My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination. But I’m not sure that courts will ultimately see this my way; so far they haven’t been inclined to do so, precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.

Here’s the Reuters news story:

“U.S. court says trademarks can’t disparage religious, ethnic groups,” Diane Bartz, Reuters

WASHINGTON (Reuters) – A U.S. appeals court on Tuesday upheld a decision to refuse to allow the owners of a website titled “Stop! Islamization of America” to trademark the site’s name, in a case that legal experts think has implications for the long-running fight over the name of the Washington Redskins NFL team.

Tuesday’s case had its origin in 2011, when an examiner with the U.S. Patent and Trademark Office (USPTO) refused to register the website name as a trademark, arguing that it could be disparaging to American Muslims. The decision was reviewed by the USPTO itself, and upheld.

The U.S. Court of Appeals for the Federal Circuit affirmed that decision, citing essays and comments on the website which opposed building mosques in the United States, and expressions of support for Muslims who leave the faith. “Appellants (the website owners) contend the essays posted on their website do not advocate suppression of the Islamic faith, but only oppose political Islamisation. The (USPTO) board disagreed, as do we,” the court said in its ruling which found “substantial evidence” for the trademark office’s decision.

Pam [sic] Geller, an owner of the website, said she was not surprised by the ruling. “This is a complete whitewash and we knew we would be up against the PC (politically correct) bias in the court. This is clear ongoing evidence of how the federal government and especially the courts, bend over backwards, kowtow and placate Muslim sensitivities,” she said in an email.

The case is being watched by trademark experts for its potential to influence an ongoing fight at the USPTO over whether Washington’s NFL team should lose its trademark for being disparaging to Native Americans, says Christine Farley, who teaches trademark law at the American University Washington College of Law. But no matter which way the final decision goes, Redskins owner Dan Snyder could reap a merchandizing bonanza, said Farley. “If he loses his trademark people are going to buy up the merchandise like crazy (before the name changes) and then they’ll buy the new merchandise (with the new name),” she said. It is unclear when the Redskins case will be resolved at the trademark office. Snyder has said the Redskins name is a badge of honor, and vowed in 2013 to never change the team’s name, according to media reports at the time.

 

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