In February 2010, Pamela Geller and Robert Spencer, executive directors of the American Freedom Defense Initiative (FDI), an advocacy organization that raises awareness about the human rights abuses perpetrated by sharia-adherent Islamists, applied to the United States Patent and Trademark Office (USPTO) to register the trademark âStop the Islamisation of Americaâ to foster and provide an understanding of how to prevent sharia-based tyranny and Islamist terrorism. The USPTO rejected FDIâs application because it deemed that the trademark disparaged Muslims and linked them to terrorism.
The USPTO rejected FDIâs application in an âOffice Actionâ based on the following analysis: (1) âIslamisationâ means converting to Islam or âto make Islamic;â and (2), âStopâ would be understood to mean that âaction must be taken to cease, or put an end to, converting or making people in America conform to Islam.â Thus, the trademark, according to the âOffice Actionâ ruling, disparaged Muslims and linked them to terrorism.
As a result, AFLC appealed the rejection of the SIOA mark to the Trademark Trial & Appeal Board (TTAB), filing a detailed and lengthy brief opposing the USPTOâs ruling. Â AFLC’s brief demonstrated that the term âIslamisationâ 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, âIslamisationâ is the process of implementing sharia into a society in order to convert that society to a sharia-compliant Islamic state.
At oral argument before the TTAB in Arlington, Virginia, Senior Counsel David Yerushalmi argued that the only probative evidence in the record for the actual meaning of âIslamisationâ was that presented by his clients and which showed beyond any doubt that Muslims and non-Muslims alike used and understood âIslamisationâ to be the political movement to implement Islamic law or sharia as the law of the land.
Peculiarly, the USPTO argued in its brief filed with the Federal Circuit Court that the government sought to protect sharia-adherent jihadists from disparagementânot just law-abiding Muslims. That is, the USPTO was not going to draw any distinction between protecting the reputations of law-abiding U.S. citizens and murderous jihadists. In response, AFLC explained to the court:
The second argument we treat here is an argument hard to take seriously at any level. The USPTO concludes its brief by asserting that a Section 2(a) disparagement rejection applies equally to protect the law abiding as well as the seditious. The statute requires, at least according to the USPTOâs newest argument, a rigid moral equivalency. The most basic problem with this argument, and there are plenty, is that it is empirically false. Thus, there are trademarks that oppose and seek to stop those who carry out abductions, such as the Somali pirates or parents who believe they are acting justly in abducting their children in violation of court orders (âStop Abductionsâ); or those who might advocate forâwhat some people call cruelty to animalsâanimal sacrifice for religious observance or just harmless sport (âSociety for the Prevention of Cruelty to Animalsâ); as well as those parents who firmly believe they are acting responsibly and in the best interests of their children by ânot withholding the rodâ (âAmerican Society for the Prevention of Cruelty to Childrenâ). There are even trademarks that suggest judges and others involved in the judicial system are terrorists (âJudicial Terrorismâ). Would the USPTO also take this view of a mark appearing as âStop Human Traffickingâ because it insulted those who treat women and young children as chattel? Moreover, even assuming this argument has legs, the fact remains that no Islamist would be disparaged by the fact that law-abiding and patriotic Americans oppose the Islamization agenda, and there is simply no evidence in the record to suggest otherwise. Indeed, based upon the factual record as a whole and specifically as previously noted herein, Islamists fully expect Western political orders to resist any move to replace the Constitution with Islamic law. That is precisely why the Muslim Brotherhood Islamists inform us, through the Brotherhoodâs motto, âAllah is our objective, the Prophet is our leader, the Qurâan is our law, jihad is our way, dying in the way of Allah is our highest hope.â
CASE UPDATE (March 4, 2014): Senior Counsel David Yerushalmi presented oral argument in the United States Court of Appeals for the Federal Circuit, requesting that the court overturn the denial of the trademark application.
CASE UPDATE (May 13, 2014): The United States Court of Appeals for the Federal Circuit upheld the Trademark Trial & Appeal Boardâs (TTAB) denial of the trademark application.
CASE UPDATE (August 11, 2014): AFLC filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the Court to review the case and reverse the decision of the Federal Circuit.
CASE UPDATE: The Supreme Court denied review. However, in a subsequent case, Matal v. Tam, the Court granted review of the provision used to deny our clients’ trademark request, finding that the provision violated the First Amendment. (Our prior case was mentioned prominently in those proceedings). As a result, we reapplied, and the TTAB was now required to grant the trademark. Case closed.