“Stop the Islamisation of America” Trademark Litigation

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 “Stop the Islamisation of America” to foster and provide an understanding of how to prevent sharia-based tyranny and Islamist terrorism. The USPTO rejected FDI’s application because it deemed that the trademark disparaged Muslims and linked them to terrorism.

The USPTO rejected FDI’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.

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 USPTO’s ruling.  AFLC’s brief demonstrated 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.

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 “Islamisation” was that presented by his clients and which showed beyond any doubt that Muslims and non-Muslims alike used and understood “Islamisation” 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 disparagement—not 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 USPTO’s 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 (“Stop Abductions”); or those who might advocate for—what some people call cruelty to animals—animal sacrifice for religious observance or just harmless sport (“Society for the Prevention of Cruelty to Animals”); as well as those parents who firmly believe they are acting responsibly and in the best interests of their children by “not withholding the rod” (“American Society for the Prevention of Cruelty to Children”). There are even trademarks that suggest judges and others involved in the judicial system are terrorists (“Judicial Terrorism”). Would the USPTO also take this view of a mark appearing as “Stop Human Trafficking” 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 Brotherhood’s motto, “Allah is our objective, the Prophet is our leader, the Qur’an is our law, jihad is our way, dying in the way of Allah is our highest hope.”

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 Board’s (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.