This decision is absurd on its face. Millions of Muslims protested against Islamization last summer, and toppled the regime that was fostering that Islamization. These people were mostly Muslims. Were they all “anti-Muslim bigots” intent on “disparaging Islam”?
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.
“Federal Circuit Court of Appeals Upholds Denial of ‘Stop the Islamisation of America’ Trademark,” American Freedom Law Center, May 14, 2014:
Washington, D.C. (May 14, 2014) — Yesterday, in an opinion that relied upon irrelevant essays and anonymous comments posted on blogs, a three-judge panel in the United States Court of Appeals for the Federal Circuit upheld the Trademark Trial & Appeal Board’s (TTAB) denial of the trademark application for “Stop the Islamisation of America” or “SIOA.” In its ruling, the court agreed with the TTAB and the United States Patent and Trademark Office (USPTO) that the trademark disparaged Muslims and linked them to terrorism.
In February 2010, Pamela Geller and Robert Spencer, executive directors of the American Freedom Defense Initiative (AFDI), an advocacy organization that raises awareness about the terror threat posed by sharia-adherent Islamists, applied to the USPTO to register the trademark “Stop the Islamisation of America” to foster and provide an understanding of how to prevent sharia-based tyranny and Islamist terrorism.
The USPTO rejected AFDI’s application in an “Office Action” 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.
The American Freedom Law Center (AFLC), which is representing the trademark applicants, argued that the term “Islamisation” is not broadly defined as a conversion of an individual; or even a whole society to the religion of Islam; or to the state of being more culturally Islamic. Rather, AFLC argued, “Islamisation” is the process of implementing sharia into a society in order to convert that society to a sharia-compliant Islamic state.
To support its argument, AFLC introduced Congressional testimony, course materials, academic articles, and a doctoral dissertation demonstrating that Muslims and non-Muslims alike used “Islamisation” and understood it to be the political movement to implement Islamic law or sharia as the law of the land.
Nevertheless, while stating that there is “peaceful political Islamisation,” the court agreed with the TTAB’s conclusion that such evidence was “less widely available” and “not necessarily reflective of the general public’s understanding” of Islamisation. The general public’s understanding, the court decided, was that “Islamisation” means to “convert to Islam.”
David Yerushalmi, AFLC Co-Founder and Senior Counsel, commented:
“In a blatant disregard of the only probative evidence in the record, the court decided to side with the Trademark Office and to just make up facts. The only facts in the record are that Muslims themselves understood Islamisation to be the political and military conversion of a civil society to a sharia-based theocracy. There was not one piece of evidence that a single Muslim felt disparaged by the mark.”
“In short, the court ignored the reality that ‘Stop the Islamisation of America’ neither disparages nor brings into disrepute law-abiding Muslims because it quite appropriately distinguishes between Islamisation as a process hostile to our political system on the one hand and the law-abiding practice of Islam as an entirely protected First Amendment exercise of religious freedom on the other. This ruling demonstrates how far sharia-adherent Islamists are insulated by political correctness.”
AFLC will likely seek review of this decision in the U.S. Supreme Court.