Today the US Supreme Court ruled in our favor, that the government may not refuse to register “potentially offensive” names (SIOA is not offensive, that is a smear). We have been suing to trademark SIOA (Stop Islamization of America) for a number of years but were repeatedly refused because it was considered “disparaging” to Muslims. Longtime Geller Report readers are quite familiar with our First Amendment trademark case. It was, in effect, an application of sharia law (‘do not criticize Islam’).
The USPTO rejected AFDI’s trademark application 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. (AFLC)
From WaPo today: The court concludes that “Stop the Islamization of America” mark, as used by its promoters, is likely to be understood as “disparaging to a substantial composite” of Muslims, whether “Islamization” refers to conversion to Islam or to “a political movement to replace man-made laws with the religious laws of Islam.”
Other organizations suffered the consequences of these capricious, arbitrary rulings.
In the case In re Tam, the federal court, which specializes in patent and trademark cases, found that the USPTO’s rejection of the musical group name “The Slants” because it disparaged Asians was unconstitutional because there was no “compelling state interest” to censure the viewpoint of the trademark owner. As a result, Simon Tam will now be able to register his band name as a federal trademark, thus allowing him to protect the name and products and services sold using that name against encroachers and counterfeiters.
What made this decision possible was the recent litigation waged by the American Freedom Law Center (“AFLC”) on behalf of Pamela Geller and Robert Spencer to register their trademark, “Stop the Islamisation of America” (“SIOA”). Like the Slants trademark, the USPTO rejected the SIOA trademark on the ground that it disparaged Muslims and even Islamists by suggesting they should be “stopped.” AFLC argued the case before a three-judge panel of the Federal Circuit Court, which upheld the USPTO ruling of disparagement.
Justices Strike Down Law Banning Disparaging Trademarks
WASHINGTON — In a decision likely to bolster the Washington Redskins’ efforts to protect its trademarks, the Supreme Court on Monday ruled that the government may not refuse to register potentially offensive names. A law denying protection to disparaging trademarks, the court said, violated the First Amendment.
The decision was unanimous, but the justices were divided on the reasoning.
The decision, concerning an Asian-American dance-rock band called the Slants, probably also means that the Washington Redskins football team will win its fight to retain federal trademark protection.
The law at issue in both cases denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.”
In 2015, a federal appeals court in Washington found the law’s disparagement provision unconstitutional in a case brought by the Slants. Writing for the majority in a 9-to-3 decision, Judge Kimberly A. Moore of the United States Court of Appeals for the Federal Circuit said that while some of the rejected trademarks “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”
Supreme Court decisions in recent years have protected offensive speech, including hateful protests at military funerals, depictions of animal cruelty and lies about military honors. More generally, the court said in 2015 in Reed v. Town of Gilbert that laws “that target speech based on its communicative content” were “presumptively unconstitutional.”