Inre: Geller
751 F.3d 1355
Fed. Cir.2014Background
- Appellants Pamela Geller and Robert B. Spencer applied to register the mark "STOP THE ISLAMISATION OF AMERICA" for services described as providing information regarding understanding and preventing terrorism.
- The USPTO Examining Attorney refused registration under 15 U.S.C. § 1052(a) (the disparagement clause); the Trademark Trial and Appeal Board affirmed.
- The Board found the term "Islamisation" has two likely meanings: (1) a religious sense—conversion or conformity to Islam; and (2) a political sense—a movement to make society subject to Islamic law.
- The Board relied on dictionaries, essays and posts on the applicants’ website, and academic/congressional materials to support the respective meanings; it gave greater weight to the religious meaning as reflecting public understanding.
- The Board concluded the mark may disparage American Muslims under both meanings because (a) the command to "STOP" creates a negative tone toward Islam or its spread, and (b) linking the mark to "preventing terrorism" associates Islam and its followers with terrorism.
- The Federal Circuit reviewed the Board’s factual findings for substantial evidence and affirmed the Board’s refusal to register the mark under § 2(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Likely meaning of "Islamisation" for § 2(a) analysis | "Islamisation" primarily means political imposition of Islamic law; religious meaning is not the public meaning | Dictionaries, website content, and public comments show a religious meaning (conversion/spread) is at least one public meaning; political meaning also exists among experts | Both religious and political meanings are likely; Board reasonably found two meanings (religious given greater public weight) |
| Reliance on website essays and anonymous comments as evidence of meaning | Board improperly relied on anecdotal, cherry-picked, anonymous blog comments and essays not reflective of marketplace use | Essays and comments on applicants’ own site, placed under the mark, are probative of how mark is used and perceived; anonymous comments have less weight but still informative | Substantial evidence supports Board’s use of applicants’ website material and comments to show public perception and usage |
| Whether the mark may disparage a substantial composite of American Muslims under the religious meaning | The mark does not disparage loyal, patriotic Muslims; at most opposes political Islamisation | The imperative "STOP" plus link to "preventing terrorism" conveys Islam/its followers are undesirable and associated with terrorism, which offends many Muslims | The Board reasonably concluded the mark may disparage a substantial composite of American Muslims under the religious meaning |
| Whether the mark may disparage under the political meaning (nonviolent political Islamisation) | Political Islamisation inherently involves terrorism; stopping it does not disparage nonviolent Muslims | Political Islamisation need not include violence; associating nonviolent political Islamisation with preventing terrorism disparages Muslims who hold or are associated with those beliefs | Substantial evidence supports that associating political Islamisation with terrorism may disparage a substantial composite of American Muslims; refusal affirmed |
Key Cases Cited
- In re Mavety, 33 F.3d 1367 (Fed. Cir. 1994) (factual findings reviewed for substantial evidence; legal conclusions reviewed de novo)
- In re Fox, 702 F.3d 633 (Fed. Cir. 2012) (describing standard of review for Board factual findings and ultimate registrability)
- Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003) (discussion of disparagement standard and when a mark dishonors or degrades a group)