Trademark Too Offensive for Approval, Court Says

     (CN) - The phrase "Stop Islamisation of America" is too offensive to Muslims to merit trademark protection, the Federal Circuit ruled.
     The decision Tuesday by a three-judge panel with the court in Washington affirms the finding of the U.S. Patent and Trademark office that the mark contains "matter which may disparage a group of persons in violation of ... the Trademark Act."
     American Freedom Defense Initiative had been using the phrase in connection to the stated goal of "preventing terrorism," and hosted a website with the same name at www.sioaonline.com.
     AFDI co-founders Pamela Geller and Robert Spencer have been banned from the United Kingdom for their beliefs regarding Muslims in America and Europe. Their efforts on this side of the Atlantic have included an essay against construction of an Islamic community center in lower Manhattan, and the running of controversial bus advertisements in Michigan , Washington and New York .
     In 2010, Geller and Spencer filed an "intent-to-use" application to register mark "Stop the Islamisation of America." There is some spelling inconsistency in the record, which also contains the American spelling variant Islamization.
     The U.S. Patent and Trademark Office and its examining attorney refused the application in 2011.
     "Because the majority of Muslims are not terrorists and are offended by being associated as such, the board determined the mark was disparaging under the religious meaning of Islamisation," Judge Evan Wallach summarized for the Federal Circuit. "The board also found the mark to be disparaging under the political meaning. It determined this narrower definition does not 'mandate the use of violence or terrorism,' so the application's suggestion that political Islamisation must be 'stopped to prevent terrorism' would be disparaging to a substantial composite of American Muslims."
     On appeal, Geller and Spencer had argued that the board lacked evidence that the mark violates the Trademark Act and that it relied on "arbitrary and anecdotal evidence" to conclude the mark's meaning and that it could offend Muslims.
     The appellate panel agreed with the Patent and Trademark Office board, denying Geller and Spencer trademark rights.
     Religious and political meanings connected with the word Islamisation are, indeed, disparaging and in violation of the Trademark Act, which states that "the board may refuse an application when the trademark consists of or comprises ... matter which may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute," the 12-page decision states.
     "Appellants conceded at oral argument that their mark is disparaging under a religious meaning of Islamisation," Wallach added.
     "Substantial evidence supports the board's finding that appellants' mark is also disparaging in the context of the political meaning of Islamisation," the decision continues.
     Wallach also cited the board's finding that "associating such political beliefs with 'preventing terrorism' as recited in the application, 'creates an association with terrorism that would be disparaging to a substantial composite of Muslims, whether or not they embrace [political] Islamisation."
     With regard to an alleged political movement to spread Islamic law, Geller and Spencer "certainly did not show that violence is required to achieve that goal," Wallach added.
     Rounding out the circuit panel are Judges Pauline Newman and Kathleen O'Malley.