IN RE PAMELA GELLER AND ROBERT B. SPENCER
Petition for certiorari filed at, 08/11/2014
Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board, in Serial No. 77940879.
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.
WALLACH, Circuit Judge. Before NEWMAN, O'MALLEY, and WALLACH, Circuit Judges.
Wallach, Circuit Judge.
Applicants Pamela Geller and Robert B. Spencer (" Appellants" ) appeal from the Trademark Trial and Appeal Board's (" Board" ) refusal to register the mark STOP THE ISLAMISATION OF AMERICA in connection with the recited services of " understanding and preventing terrorism." J.A. 27. The Board found the mark contains " matter which may disparage" a group of persons in violation of § 2(a) of the Trademark Act. Because the Board's finding is supported by substantial evidence
and in accordance with law, this court affirms.
In February 2010, Appellants 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." 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 " 'a substantial composite of the referenced group.'" J.A. 2-3 (quoting In re Lebanese Arak Corp., 94 U.S.P.Q.2d 1215, 1217 (T.T.A.B. 2010)).
The Board found the term " Islamisation," as used in the mark, had two likely meanings: (1) " the conversion or conformance to Islam" (" the religious meaning" ), J.A. 8; and (2) " a sectarianization of a political society through efforts to 'make [it] subject to Islamic law'" (" the political meaning" ), J.A. 9 (alteration in original). The religious meaning was supported by dictionary definitions and evidence of how the term was used in the marketplace, J.A. 3-8, and the Board found this meaning was " more reflective of the public's current understanding of the term." J.A. 12. The political meaning of " Islamisation," in turn, was supported by various publications by " professionals, academics and religious and legal experts." J.A. 9. Such evidence was " less widely available" and " not necessarily reflective of the general public's understanding" of Islamisation. J.A. 11. Nevertheless, the Board found it established " a second meaning" of Islamisation, " at least to academic, professional, legal and religious experts." J.A. 12.
The Board determined the mark may be disparaging to American Muslims under both meanings of " Islamisation." J.A. 23. With respect to the religious meaning, the Board found the mark was disparaging to American Muslims because " [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." J.A. 16. Moreover, the Board found Appellants' proposed use of the mark for " understanding and preventing terrorism" resulted in " a direct association of Islam and its followers with terrorism."  J.A. 16. Because " the majority of Muslims are not terrorists and are offended by ...