In re: Geller

Justia.com Opinion Summary: In 2010, Geller and Spence filed an intent-to-use application to register the mark STOP THE ISLAMISATION OF AMERICA in connection with “[p]roviding information regarding understanding and preventing terrorism.” The Examining Attorney refused the application on the ground that the mark may be disparaging to American Muslims under the Trademark Act, 15 U.S.C. 1052(a). The Trademark Trial and Appeal Board affirmed, considering the likely meaning of the mark, and determining that meaning was likely to disparage “a substantial composite of the referenced group.” The Board found the term “Islamisation,” as used in the mark, had two likely meanings: “the conversion or conformance to Islam” (religious meaning) and “a sectarianization of a political society through efforts to ‘make [it] subject to Islamic law’” (political meaning).The Board determined the mark may be disparaging to American Muslims under both meanings. The Federal Circuit affirmed.



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United States Court of Appeals for the Federal Circuit ______________________ IN RE PAMELA GELLER AND ROBERT B. SPENCER ______________________ 2013-1412 ______________________ Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board, in Serial No. 77940879. ______________________ Decided: May 13, 2014 ______________________ DAVID YERUSHALMI, American Freedom Law Center, of Washington, DC, argued for appellants. THOMAS L. CASAGRANDE, Associate Solicitor, United States Patent and Trademark Office, of Alexandria, Virginia, argued for appellee. With him on the brief were NATHAN K. KELLEY, Solicitor, BENJAMIN T. HICKMAN, and Christina Hieber, Associate Solicitor. ______________________ Before NEWMAN, OâMALLEY, and WALLACH, Circuit Judges. WALLACH, Circuit Judge. Applicants Pamela Geller and Robert B. Spencer (âAppellantsâ) appeal from the Trademark Trial and Appeal Boardâs (âBoardâ) refusal to register the mark 2 IN RE: GELLER STOP THE ISLAMISATION OF AMERICA in connection with the recited services of âunderstanding and preventing terrorism.â J.A. 27. The Board found the mark contains âmatter which may disparageâ a group of persons in violation of § 2(a) of the Trademark Act. Because the Boardâs finding is supported by substantial evidence and in accordance with law, this court affirms. BACKGROUND In February 2010, Appellants filed an intent-to-use application to register the mark STOP THE ISLAMISATION 1 OF AMERICA in connection with â[p]roviding information regarding understanding and preventing terrorism.â J.A. 27. The Examining Attorney refused the application on January 19, 2011, on the ground that the mark may be disparaging to American Muslims pursuant to § 2(a) of the Trademark Act, 15 U.S.C. § 1052(a) (2006). Appellants filed an appeal to the Board, which affirmed the § 2(a) refusal. In reaching this conclusion, the Board considered the likely meaning of the mark, and then determined whether that meaning was likely to disparage ââa substantial composite of the referenced group.ââ J.A. 2â3 (quoting In re Lebanese Arak Corp., 94 U.S.P.Q.2d 1215, 1217 (T.T.A.B. 2010)). The Board found the term âIslamisation,â as used in the mark, had two likely meanings: (1) âthe conversion or conformance to Islamâ (âthe religious meaningâ), J.A. 8; and (2) âa sectarianization of a political society through efforts to âmake [it] subject to Islamic lawââ (âthe political meaningâ), J.A. 9 (alteration in original). The religious meaning was supported by dictionary definitions and The Board and the parties alternate between spelling âIslamisationâ with an âsâ (âIslamisationâ) and with a âzâ (âIslamizationâ). All agree the spelling variation is immaterial. 1 IN RE: GELLER 3 evidence of how the term was used in the marketplace, J.A. 3â8, and the Board found this meaning was âmore reflective of the publicâs current understanding of the term.â J.A. 12. The political meaning of âIslamisation,â in turn, was supported by various publications by âprofessionals, academics and religious and legal experts.â J.A. 9. Such evidence was âless widely availableâ and ânot necessarily reflective of the general publicâs understandingâ of Islamisation. J.A. 11. Nevertheless, the Board found it established âa second meaningâ of Islamisation, âat least to academic, professional, legal and religious experts.â J.A. 12. The Board determined the mark may be disparaging to American Muslims under both meanings of âIslamisation.â J.A. 23. With respect to the religious meaning, the Board found the mark was disparaging to American Muslims because â[t]he admonition in the mark to STOP sets a negative tone and signals that Islamization is undesirable and is something that must be brought to an end in America.â J.A. 16. Moreover, the Board found Appellantsâ proposed use of the mark for âunderstanding and preventing terrorismâ resulted in âa direct association of Islam and its followers with terrorism.â 2 J.A. 16. Appellants do not contest the Boardâs reliance on an online dictionary definition of âterrorismâ as ââthe use of violence and threats to intimidate or coerce, esp. for political purposes.ââ J.A. 4 (quoting J.A. 73 (Terrorism, Dictionary.com, http://dictionary.reference.com/browse /terrorism (as retrieved on Apr. 28, 2010))). Other more specific definitions may be found in various treaties (see, e.g., International Convention for the Suppression of Terrorist Bombings art. 2, Dec. 15, 1997, 116 Stat. 721, 2149 U.N.T.S. 284, 285â86), and national statutes (see, e.g., 18 U.S.C. § 2331(1), (5) (2012)), but the broad definition is certainly adequate for the purposes of this case. 2 4 IN RE: GELLER Because âthe majority of Muslims are not terrorists and are offended by being associated as such,â the Board determined the mark was disparaging under the religious meaning of Islamisation. J.A. 16. The Board also found the mark would be disparaging under the political meaning of Islamisation. J.A. 19. It determined that even this narrower definition does not âmandate the use of violence or terrorism,â so the applicationâs suggestion that political Islamisation must be âstop[ped]â to âprevent[ ] terrorismâ would be disparaging to a substantial composite of American Muslims. J.A. 18â 19, 21. The Board accordingly affirmed the Examining Attorneyâs refusal to register the mark under § 2(a) of the Trademark Act. Appellants filed this timely appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(B) (2012). DISCUSSION On appeal, Appellants argue there is no substantial evidence to support the Boardâs finding that the proposed mark may be disparaging in violation of § 2(a) of the Trademark Act. They contend the Board improperly relied âon arbitrary and anecdotal evidenceâ in determining the markâs meaning and in finding that meaning may disparage American Muslims. Appellantsâ Br. 2, 13, 19. Section 2(a) of the Trademark Act provides that the Board may refuse an application when the trademark â[c]onsists of or comprises . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.â 15 U.S.C. § 1052(a) (emphasis added). Although neither party was able to identify a prior case in this court or its predecessor setting forth the legal analysis for a § 2(a) refusal based on disparagement, all parties agree the proper inquiry was set forth by the Board in In re Lebanese Arak Corp.: IN RE: GELLER 5 (1) what is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and (2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group. In re Lebanese Arak Corp., 94 U.S.P.Q.2d at 1217; see also Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1740â41 (T.T.A.B. 1999), revâd on other grounds, 284 F. Supp. 2d 96 (D.D.C. 2003). A mark may disparage when it ââdishonor[s] by comparison with what is inferior, slight[s], deprecate[s], degrade[s], or affect[s] or injure[s] by unjust comparison.ââ Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 124 (D.D.C. 2003) (quoting Harjo, 50 U.S.P.Q.2d at 1737 n.98). The determination that a mark may be disparaging âis a conclusion of law based upon underlying factual inquiries.â Cf. In re Mavety, 33 F.3d 1367, 1371 (Fed. Cir. 1994) (applying that standard with respect to whether a mark is âscandalousâ under § 2(a)). The Boardâs factual findings are reviewed for substantial evidence, âwhile its ultimate conclusion as to registrability is reviewed de novo.â In re Fox, 702 F.3d 633, 637 (Fed. Cir. 2012). I. The first prong of the disparagement test determines âthe likely meaning of the matter in question.â In re Lebanese Arak Corp., 94 U.S.P.Q.2d at 1217. The Board found the term ISLAMISATION used in Appellantsâ mark 6 IN RE: GELLER has two likely meanings: the religious meaning and the political meaning. 3 On appeal, Appellants argue the Board âignore[d] the overwhelming evidence in the record that the term âIslamisationâ has only been used in the public domain to refer to a political and military process replacing civilian laws with Islamic religious law.â Appellantsâ Br. 13 (emphasis added). To the extent Appellants argue the political meaning of Islamisation is the sole likely meaning under prong one, they are incorrect. The Board relied on three separate types of evidence in support of the religious meaning. First, it considered dictionaries that listed the primary definition of âIslamizeâ as ââto convertââ or ââconformââ to Islam. J.A. 4 (quoting, e.g., J.A. 58 (Islamize, Dictionary.com, http://dictionary.reference.com (as retrieved on Apr. 28, 2010))); J.A. 1040 (Islamize, YourDictionary, http://yourdictionary.com/Islamize (as retrieved on Sept. 1, 2010))); see also J.A. 3 n.3 (âThe definitions indicate that âIslamizationâ is the noun form of the transitive verb âIslamize.ââ). Next, the Board considered certain essays posted on Appellantsâ website, www.sioaonline.com, 4 which were âfeatured immediately underneath the websiteâs STOP THE ISLAMIZATION OF AMERICA banner.â J.A. 6. Two of these essays opposed construction of mosques in the United States, and another essay discussed an ad campaign to provide âassistanceâ to Muslims considering leaving the Islamic faith. J.A. 5â6, 1043â46, 1064â67, 1075â77. Finally, the Board considered readersâ As noted above, the âreligious meaningâ of Islamisation is âthe conversion or conformance to Islam,â J.A. 8, and the âpolitical meaningâ is âa sectarianization of a political society through efforts to âmake [it] subject to Islamic law,ââ J.A. 9. 4 This website is no longer available (last checked Mar. 17, 2014). 3 IN RE: GELLER 7 comments posted on Appellantsâ website as âreflect[ive of] the websiteâs message of stopping the spread of Islam in the United States.â J.A. 6. Appellants do not challenge the Boardâs reliance on online dictionaries, but instead assert error in the remainder of the Boardâs analysis of âIslamisation.â They argue the Board improperly relied on âirrelevant essays and arbitrarily selected anonymous âcommentsâ posted to Appellantsâ blog.â Appellantsâ Br. 13. Appellants contend the essays posted on their website do not advocate suppression of the Islamic faith, but only oppose political Islamisation. The Board disagreed, as do we. The first essay they discuss is titled â[Stop the Islamisation of America] Mosque Manifesto: All Mosques are Not Created Equal, A Handy Guide to Fighting the Muslim Brotherhood.â J.A. 1043. Appellants characterize this essay as merely opposing âIslamist Muslim Brotherhood groupsâ that âuse mosque-building as a political tool to accomplish Islamisation.â Appellantsâ Br. at 14. This is an overly narrow interpretation of the âMosque Manifestoâ essay, which provides tips for opposing âhuge monster mosque[s]â proposed in peopleâs communities. J.A. 1044. Although portions of the essay refer to political forces such as the Muslim Brotherhood, the article as a whole implicates Islam more generally. See, e.g., J.A. 1045 (quoting a source that â80% of American mosques were controlled by âextremistsââ); J.A. 1043 (âAs we have been reminded time after time after grisly Islamic terror plots have been exposed, there is always a mosque, and the imprimatur of a cleric, behind every operation.â). Taken generally, as Appellants do, mosques in this country are respectable and respected community religious institutions. Substantial evidence supports the Boardâs finding that the âMosque Manifestoâ essay advocates 8 IN RE: GELLER suppression of the Islamic faith, taught and practiced in those places of prayer. 5 Appellants also challenge the Boardâs reliance on the essay, âDetroit Transit Sued for Nixing [Stop the Islamisation of America] âLeaving Islam?â Bus ads.â J.A. 1075. They contend the essay âmerely recounts the debate over an advertisement . . . to provide Muslims who have offended Islamists with a refuge from retaliatory violence.â Appellantsâ Br. 16. The record supports the Boardâs finding that the âBus adsâ essay is not about political beliefs, but rather about the Islamic faith. It describes an ad campaign run by Appellants and others âin response to bus ads in Florida inviting people to convert to Islam.â J.A. 1076 (emphasis added). As characterized by Appellants, the ads offered âassistanceâ to people considering leaving Islam, and suggested those individuals would otherwise be subject to âretaliatory violenceâ by other Muslims. Appellantsâ Br. 16. This essay supports the Boardâs conclusion that Appellants used the mark in the context of stopping the spread of the Islamic faith. Appellants further argue the Board erred in relying on âcherry-picked anonymous commentsâ posted on their website. Appellantsâ Br. 17. They contend such comments âare not indicative of how Appellants use the Mark in the marketplaceâ and âare not even remotely representative of âconsumersâ of Appellants[], but rather a biased selection of people who leave comments at blogs.â Id. The Board considered these drawbacks of anonymous public comments, and noted âthe probative value of the Another essay on Appellantsâ website opposed a mosque and Islamic Center being built in New York City near the site of the former World Trade Center. J.A. 1081â82. The Board was correct that this essay also addresses the spread of the Islamic faith, not political Islamisation. See J.A. 6. 5 IN RE: GELLER 9 blog comments . . . is less than that of the articles themselves due to the anonymity of the authors.â J.A. 8. With that caveat, the Board properly found the comments âprovide additional insight into the publicâs perception of and reaction to applicantsâ STOP THE ISLAMISATION OF AMERICA mark and services as used in the marketplace.â J.A. 8. The referenced comments reflect the religious meaning of Islamisation, and evidence a desire to stop the spread of Islam in America. See J.A. 6â7 (quoting comments) (âIslam is evilâ; â[T]hereâs only one thing you can do and thatâs say no to Islam and the [I]slamization of Americaâ; â[T]he name you chose [Stop the Islamisation of America] does imply that you wish to stop [I]slam in this country . . . .â). The Board did not err in concluding that such comments showed the religious meaning of Islamisation. Finally, the remaining evidence does not establish the political definition of âIslamisationâ as the sole likely meaning. The online dictionary definitions in the record list the political meaning as secondary. J.A. 4 (quoting, e.g., J.A. 1039 (Islamize, Encarta, http://encarta.msn.com /encnet/features/dictionary/DictionaryResults.aspx?refid= 1861622547 (as retrieved on Sept. 1, 2010) (â2. [M]ake subject to Islamic law: to cause people, institutions, or countries to follow Islamic law.â))). As further support, Appellants submitted Congressional testimony, course materials, academic articles, and a doctoral dissertation using the term âIslamisationâ in its political sense. The Board considered these additional sources but found they were âless widely availableâ and ânot necessarily reflective of the general publicâs understanding of the meaning of applicantsâ mark.â J.A. 11â12. The Board, however, found Appellants had established the political definition as one likely meaning of Islamisation, and therefore considered both the religious and political meanings in the second part of the analysis. 10 IN RE: GELLER II. The second prong of the disparagement inquiry asks whether the likely meaning identified in prong one âis found to refer to identifiable persons, institutions, beliefs or national symbols,â and if so, whether that meaning âmay be disparaging to a substantial composite of the referenced group.â In re Lebanese Arak Corp., 94 U.S.P.Q.2d at 1217. The Board found both meanings of Islamisation refer to all American Muslims. J.A. 13 (noting that Appellants agreed). It then determined that the mark may be disparaging to American Muslims under both the religious and the political meanings of Islamisation. J.A. 23. With respect to the religious meaning, the Board found the markâs admonition to âSTOPâ Islamisation in America âsets a negative tone and signals that Islamization is undesirable and is something that must be brought to an end in America.â J.A. 16. Moreover, it determined that using the mark in connection with preventing terrorism âcreates a direct association of Islam and its followers with terrorism.â J.A. 16. The Board explained that âthe majority of Muslims are not terrorists and are offended by being associated as such.â J.A. 16. The Board listed multiple sources where Muslims stated they were concerned by, e.g., âanti-Muslim sentiment that automatically associates Islam with terrorism.â J.A. 16â17 (quoting J.A. 1020 (Andy Grimm, Show of Support for Muslims: Religious Leaders Call for Tolerance Amid Tensions, Chicago Tribune, Sept. 12, 2010, at C10)); see also J.A 16 (quoting J.A. 53 (Bob Makin, Muslims Say Terrorists Have Hijacked Their Faith, Courier News, June 2, 2008) (âWe believe [Islamic terrorist] is not the right terminology to use, because it links something very positive, like Islam, with the word âterrorist.ââ)). On appeal, Appellants argue this evidence âhas nothing to do with Appellantsâ Mark literally or in context of IN RE: GELLER 11 the meaning of the terms used in the marketplace of ideas.â Appellantsâ Br. 21. This argument merely restates Appellantsâ prong-one arguments about the markâs likely meaning. As discussed above, the Board properly found that one meaning of Islamisationâthe âmore reflectiveâ meaningâis to convert to Islam. J.A. 12. Appellants conceded at oral argument that their mark is disparaging under a religious meaning of Islamisation. Oral Arg. at 1:27â52, In re Geller, No. 2013-1412 (Mar. 4, 2014), available at http://www.cafc.uscourts.gov/oralargument-recordings/all/geller.html. Substantial evidence supports the Boardâs finding that Appellantsâ mark is also disparaging in the context of the political meaning of Islamisation. J.A. 19. The Board reasoned the political meaning ârefers to a political movement to replace man-made laws with the religious laws of Islam,â which does not âmandate the use of violence or terrorism.â J.A. 19. The Board found associating such political beliefs with âpreventing terrorism,â as recited in the application, âcreates an association with terrorism that would be disparaging to a substantial composite of Muslims, whether or not they embrace [political] Islamization.â J.A. 21â22. Appellants challenge the Boardâs determination that political Islamisation includes nonviolent activity, and instead contend that âall of the record points to the fact that Islamisation ultimately includes terrorism.â Oral Arg. at 26:20â33. Appellants maintain their mark to âSTOPâ Islamisation therefore does not disparage âloyal, patriotic American Muslims.â Appellantsâ Br. 25. Contrary to Appellantsâ contention, nothing in the record suggests that the political meaning of Islamisation requires violence or terrorism. Appellantsâ own evidence describes âpolitical Islamistsâ as âby and large, people who are non-violent, yet . . . have an ideological agenda,â and states that âIslamism manifests itself in activist agendas that span the complete spectrum from democratic politics 12 IN RE: GELLER to violent efforts aimed at imposing Shariah law worldwide.â J.A. 20 (emphasis added) (internal quotation marks and citations omitted). To the extent Appellants established that one likely meaning of Islamisation is a political movement to spread Islamic law, they certainly did not show that violence is required to achieve that goal. The political meaning of Islamisation does not require violence or terrorism, and the Board properly found that associating peaceful political Islamisation with terrorism would be disparaging to a substantial composite of American Muslims. See J.A. 21â23. The Boardâs refusal of Appellantsâ mark as disparaging matter under § 2(a) is therefore affirmed. CONCLUSION For the foregoing reasons, and because this court finds Appellantsâ remaining arguments unpersuasive, the Boardâs refusal of Appellantsâ mark STOP THE ISLAMISATION OF AMERICA is affirmed. AFFIRMED