Inre: Geller , 751 F.3d 1355 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
IN RE PAMELA GELLER AND
ROBERT B. SPENCER
______________________
2013-1412
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board, in Serial No.
77940879.
______________________
Decided: May 13, 2014
______________________
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.
______________________
Before NEWMAN, O’MALLEY, and WALLACH, Circuit Judg-
es.
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
2 IN RE: GELLER
STOP THE ISLAMISATION OF AMERICA in connection
with the recited services of “understanding and prevent-
ing terrorism.” J.A. 27. The Board found the mark con-
tains “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.
BACKGROUND
In February 2010, Appellants filed an intent-to-use
application to register the mark STOP THE
ISLAMISATION 1 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 refer-
enced 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
1 The Board and the parties alternate between
spelling “Islamisation” with an “s” (“Islamisation”) and
with a “z” (“Islamization”). All agree the spelling varia-
tion is immaterial.
IN RE: GELLER 3
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 “profes-
sionals, academics and religious and legal experts.” J.A.
9. Such evidence was “less widely available” and “not
necessarily reflective of the general public’s understand-
ing” 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 “Islamisa-
tion.” 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.” 2 J.A. 16.
2 Appellants do not contest the Board’s reliance on
an online dictionary definition of “terrorism” as “‘the use
of violence and threats to intimidate or coerce, esp. for
political purposes.’” J.A. 4 (quoting J.A. 73 (Terrorism,
Dictionary.com, http://dictionary.reference.com/browse
/terrorism (as retrieved on Apr. 28, 2010))). Other more
specific definitions may be found in various treaties (see,
e.g., International Convention for the Suppression of
Terrorist Bombings art. 2, Dec. 15, 1997, 116 Stat. 721,
2149 U.N.T.S. 284, 285–86), and national statutes (see,
e.g., 18 U.S.C. § 2331(1), (5) (2012)), but the broad defini-
tion is certainly adequate for the purposes of this case.
4 IN RE: GELLER
Because “the majority of Muslims are not terrorists and
are offended by being associated as such,” the Board
determined the mark was disparaging under the religious
meaning of Islamisation. J.A. 16.
The Board also found the mark would be disparaging
under the political meaning of Islamisation. J.A. 19. It
determined that even this narrower definition does not
“mandate the use of violence or terrorism,” so the applica-
tion’s suggestion that political Islamisation must be
“stop[ped]” to “prevent[ ] terrorism” would be disparaging
to a substantial composite of American Muslims. J.A. 18–
19, 21. The Board accordingly affirmed the Examining
Attorney’s refusal to register the mark under § 2(a) of the
Trademark Act.
Appellants filed this timely appeal. This court has ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(4)(B) (2012).
DISCUSSION
On appeal, Appellants argue there is no substantial
evidence to support the Board’s finding that the proposed
mark may be disparaging in violation of § 2(a) of the
Trademark Act. They contend the Board improperly
relied “on arbitrary and anecdotal evidence” in determin-
ing the mark’s meaning and in finding that meaning may
disparage American Muslims. Appellants’ Br. 2, 13, 19.
Section 2(a) of the Trademark Act provides that the
Board may refuse an application when the trademark
“[c]onsists of or comprises . . . matter which may dispar-
age . . . persons, living or dead, institutions, beliefs, or
national symbols, or bring them into contempt, or disre-
pute.” 15 U.S.C. § 1052(a) (emphasis added). Although
neither party was able to identify a prior case in this
court or its predecessor setting forth the legal analysis for
a § 2(a) refusal based on disparagement, all parties agree
the proper inquiry was set forth by the Board in In re
Lebanese Arak Corp.:
IN RE: GELLER 5
(1) what is the likely meaning of the matter in
question, taking into account not only dictionary
definitions, but also the relationship of the matter
to the other elements in the mark, the nature of
the goods or services, and the manner in which
the mark is used in the marketplace in connection
with the goods or services; and
(2) if that meaning is found to refer to identifiable
persons, institutions, beliefs or national symbols,
whether that meaning may be disparaging to a
substantial composite of the referenced group.
In re Lebanese Arak Corp., 94 U.S.P.Q.2d at 1217; see
also Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705,
1740–41 (T.T.A.B. 1999), rev’d on other grounds, 284 F.
Supp. 2d 96 (D.D.C. 2003). A mark may disparage when
it “‘dishonor[s] by comparison with what is inferior,
slight[s], deprecate[s], degrade[s], or affect[s] or injure[s]
by unjust comparison.’” Pro-Football, Inc. v. Harjo, 284 F.
Supp. 2d 96, 124 (D.D.C. 2003) (quoting Harjo, 50
U.S.P.Q.2d at 1737 n.98).
The determination that a mark may be disparaging
“is a conclusion of law based upon underlying factual
inquiries.” Cf. In re Mavety, 33 F.3d 1367, 1371 (Fed. Cir.
1994) (applying that standard with respect to whether a
mark is “scandalous” under § 2(a)). The Board’s factual
findings are reviewed for substantial evidence, “while its
ultimate conclusion as to registrability is reviewed de
novo.” In re Fox, 702 F.3d 633, 637 (Fed. Cir. 2012).
I.
The first prong of the disparagement test determines
“the likely meaning of the matter in question.” In re
Lebanese Arak Corp., 94 U.S.P.Q.2d at 1217. The Board
found the term ISLAMISATION used in Appellants’ mark
6 IN RE: GELLER
has two likely meanings: the religious meaning and the
political meaning. 3 On appeal, Appellants argue the
Board “ignore[d] the overwhelming evidence in the record
that the term ‘Islamisation’ has only been used in the
public domain to refer to a political and military process
replacing civilian laws with Islamic religious law.” Appel-
lants’ Br. 13 (emphasis added).
To the extent Appellants argue the political meaning
of Islamisation is the sole likely meaning under prong one,
they are incorrect. The Board relied on three separate
types of evidence in support of the religious meaning.
First, it considered dictionaries that listed the primary
definition of “Islamize” as “‘to convert’” or “‘conform’” to
Islam. J.A. 4 (quoting, e.g., J.A. 58 (Islamize, Diction-
ary.com, http://dictionary.reference.com (as retrieved on
Apr. 28, 2010))); J.A. 1040 (Islamize, YourDictionary,
http://yourdictionary.com/Islamize (as retrieved on Sept.
1, 2010))); see also J.A. 3 n.3 (“The definitions indicate
that ‘Islamization’ is the noun form of the transitive verb
‘Islamize.’”). Next, the Board considered certain essays
posted on Appellants’ website, www.sioaonline.com, 4
which were “featured immediately underneath the web-
site’s STOP THE ISLAMIZATION OF AMERICA ban-
ner.” J.A. 6. Two of these essays opposed construction of
mosques in the United States, and another essay dis-
cussed an ad campaign to provide “assistance” to Muslims
considering leaving the Islamic faith. J.A. 5–6, 1043–46,
1064–67, 1075–77. Finally, the Board considered readers’
3 As noted above, the “religious meaning” of Islami-
sation is “the conversion or conformance to Islam,” J.A. 8,
and the “political meaning” is “a sectarianization of a
political society through efforts to ‘make [it] subject to
Islamic law,’” J.A. 9.
4 This website is no longer available (last checked
Mar. 17, 2014).
IN RE: GELLER 7
comments posted on Appellants’ website as “reflect[ive of]
the website’s message of stopping the spread of Islam in
the United States.” J.A. 6.
Appellants do not challenge the Board’s reliance on
online dictionaries, but instead assert error in the re-
mainder of the Board’s analysis of “Islamisation.” They
argue the Board improperly relied on “irrelevant essays
and arbitrarily selected anonymous ‘comments’ posted to
Appellants’ blog.” Appellants’ Br. 13.
Appellants contend the essays posted on their website
do not advocate suppression of the Islamic faith, but only
oppose political Islamisation. The Board disagreed, as do
we. The first essay they discuss is titled “[Stop the Islam-
isation of America] Mosque Manifesto: All Mosques are
Not Created Equal, A Handy Guide to Fighting the Mus-
lim Brotherhood.” J.A. 1043. Appellants characterize
this essay as merely opposing “Islamist Muslim Brother-
hood groups” that “use mosque-building as a political tool
to accomplish Islamisation.” Appellants’ Br. at 14. This
is an overly narrow interpretation of the “Mosque Mani-
festo” essay, which provides tips for opposing “huge mon-
ster mosque[s]” proposed in people’s communities. J.A.
1044. Although portions of the essay refer to political
forces such as the Muslim Brotherhood, the article as a
whole implicates Islam more generally. See, e.g., J.A.
1045 (quoting a source that “80% of American mosques
were controlled by ‘extremists’”); J.A. 1043 (“As we have
been reminded time after time after grisly Islamic terror
plots have been exposed, there is always a mosque, and
the imprimatur of a cleric, behind every operation.”).
Taken generally, as Appellants do, mosques in this coun-
try are respectable and respected community religious
institutions. Substantial evidence supports the Board’s
finding that the “Mosque Manifesto” essay advocates
8 IN RE: GELLER
suppression of the Islamic faith, taught and practiced in
those places of prayer. 5
Appellants also challenge the Board’s reliance on the
essay, “Detroit Transit Sued for Nixing [Stop the Islami-
sation of America] ‘Leaving Islam?’ Bus ads.” J.A. 1075.
They contend the essay “merely recounts the debate over
an advertisement . . . to provide Muslims who have of-
fended Islamists with a refuge from retaliatory violence.”
Appellants’ Br. 16. The record supports the Board’s
finding that the “Bus ads” essay is not about political
beliefs, but rather about the Islamic faith. It describes an
ad campaign run by Appellants and others “in response to
bus ads in Florida inviting people to convert to Islam.”
J.A. 1076 (emphasis added). As characterized by Appel-
lants, the ads offered “assistance” to people considering
leaving Islam, and suggested those individuals would
otherwise be subject to “retaliatory violence” by other
Muslims. Appellants’ Br. 16. This essay supports the
Board’s conclusion that Appellants used the mark in the
context of stopping the spread of the Islamic faith.
Appellants further argue the Board erred in relying
on “cherry-picked anonymous comments” posted on their
website. Appellants’ Br. 17. They contend such com-
ments “are not indicative of how Appellants use the Mark
in the marketplace” and “are not even remotely repre-
sentative of ‘consumers’ of Appellants[], but rather a
biased selection of people who leave comments at blogs.”
Id. The Board considered these drawbacks of anonymous
public comments, and noted “the probative value of the
5 Another essay on Appellants’ website opposed a
mosque and Islamic Center being built in New York City
near the site of the former World Trade Center. J.A.
1081–82. The Board was correct that this essay also
addresses the spread of the Islamic faith, not political
Islamisation. See J.A. 6.
IN RE: GELLER 9
blog comments . . . is less than that of the articles them-
selves due to the anonymity of the authors.” J.A. 8. With
that caveat, the Board properly found the comments
“provide additional insight into the public’s perception of
and reaction to applicants’ STOP THE ISLAMISATION
OF AMERICA mark and services as used in the market-
place.” J.A. 8. The referenced comments reflect the
religious meaning of Islamisation, and evidence a desire
to stop the spread of Islam in America. See J.A. 6–7
(quoting comments) (“Islam is evil”; “[T]here’s only one
thing you can do and that’s say no to Islam and the
[I]slamization of America”; “[T]he name you chose [Stop
the Islamisation of America] does imply that you wish to
stop [I]slam in this country . . . .”). The Board did not err
in concluding that such comments showed the religious
meaning of Islamisation.
Finally, the remaining evidence does not establish the
political definition of “Islamisation” as the sole likely
meaning. The online dictionary definitions in the record
list the political meaning as secondary. J.A. 4 (quoting,
e.g., J.A. 1039 (Islamize, Encarta, http://encarta.msn.com
/encnet/features/dictionary/DictionaryResults.aspx?refid=
1861622547 (as retrieved on Sept. 1, 2010) (“2. [M]ake
subject to Islamic law: to cause people, institutions, or
countries to follow Islamic law.”))). As further support,
Appellants submitted Congressional testimony, course
materials, academic articles, and a doctoral dissertation
using the term “Islamisation” in its political sense. The
Board considered these additional sources but found they
were “less widely available” and “not necessarily reflective
of the general public’s understanding of the meaning of
applicants’ mark.” J.A. 11–12. The Board, however,
found Appellants had established the political definition
as one likely meaning of Islamisation, and therefore
considered both the religious and political meanings in
the second part of the analysis.
10 IN RE: GELLER
II.
The second prong of the disparagement inquiry asks
whether the likely meaning identified in prong one “is
found to refer to identifiable persons, institutions, beliefs
or national symbols,” and if so, whether that meaning
“may be disparaging to a substantial composite of the
referenced group.” In re Lebanese Arak Corp., 94
U.S.P.Q.2d at 1217. The Board found both meanings of
Islamisation refer to all American Muslims. J.A. 13
(noting that Appellants agreed). It then determined that
the mark may be disparaging to American Muslims under
both the religious and the political meanings of Islamisa-
tion. J.A. 23.
With respect to the religious meaning, the Board
found the mark’s admonition to “STOP” Islamisation in
America “sets a negative tone and signals that Islamiza-
tion is undesirable and is something that must be brought
to an end in America.” J.A. 16. Moreover, it determined
that using the mark in connection with preventing terror-
ism “creates a direct association of Islam and its followers
with terrorism.” J.A. 16. The Board explained that “the
majority of Muslims are not terrorists and are offended by
being associated as such.” J.A. 16. The Board listed
multiple sources where Muslims stated they were con-
cerned by, e.g., “anti-Muslim sentiment that automatical-
ly associates Islam with terrorism.” J.A. 16–17 (quoting
J.A. 1020 (Andy Grimm, Show of Support for Muslims:
Religious Leaders Call for Tolerance Amid Tensions,
Chicago Tribune, Sept. 12, 2010, at C10)); see also J.A 16
(quoting J.A. 53 (Bob Makin, Muslims Say Terrorists
Have Hijacked Their Faith, Courier News, June 2, 2008)
(“We believe [Islamic terrorist] is not the right terminolo-
gy to use, because it links something very positive, like
Islam, with the word ‘terrorist.’”)).
On appeal, Appellants argue this evidence “has noth-
ing to do with Appellants’ Mark literally or in context of
IN RE: GELLER 11
the meaning of the terms used in the marketplace of
ideas.” Appellants’ Br. 21. This argument merely re-
states Appellants’ prong-one arguments about the mark’s
likely meaning. As discussed above, the Board properly
found that one meaning of Islamisation—the “more reflec-
tive” meaning—is to convert to Islam. J.A. 12. Appel-
lants conceded at oral argument that their mark is
disparaging under a religious meaning of Islamisation.
Oral Arg. at 1:27–52, In re Geller, No. 2013-1412 (Mar. 4,
2014), available at http://www.cafc.uscourts.gov/oral-
argument-recordings/all/geller.html.
Substantial evidence supports the Board’s finding
that Appellants’ mark is also disparaging in the context of
the political meaning of Islamisation. J.A. 19. The Board
reasoned the political meaning “refers to a political
movement to replace man-made laws with the religious
laws of Islam,” which does not “mandate the use of vio-
lence or terrorism.” J.A. 19. The Board found associating
such political beliefs with “preventing terrorism,” as
recited in the application, “creates an association with
terrorism that would be disparaging to a substantial
composite of Muslims, whether or not they embrace
[political] Islamization.” J.A. 21–22.
Appellants challenge the Board’s determination that
political Islamisation includes nonviolent activity, and
instead contend that “all of the record points to the fact
that Islamisation ultimately includes terrorism.” Oral
Arg. at 26:20–33. Appellants maintain their mark to
“STOP” Islamisation therefore does not disparage “loyal,
patriotic American Muslims.” Appellants’ Br. 25. Con-
trary to Appellants’ contention, nothing in the record
suggests that the political meaning of Islamisation re-
quires violence or terrorism. Appellants’ own evidence
describes “political Islamists” as “by and large, people who
are non-violent, yet . . . have an ideological agenda,” and
states that “Islamism manifests itself in activist agendas
that span the complete spectrum from democratic politics
12 IN RE: GELLER
to violent efforts aimed at imposing Shariah law world-
wide.” J.A. 20 (emphasis added) (internal quotation
marks and citations omitted). To the extent Appellants
established that one likely meaning of Islamisation is a
political movement to spread Islamic law, they certainly
did not show that violence is required to achieve that goal.
The political meaning of Islamisation does not require
violence or terrorism, and the Board properly found that
associating peaceful political Islamisation with terrorism
would be disparaging to a substantial composite of Ameri-
can Muslims. See J.A. 21–23. The Board’s refusal of
Appellants’ mark as disparaging matter under § 2(a) is
therefore affirmed.
CONCLUSION
For the foregoing reasons, and because this court
finds Appellants’ remaining arguments unpersuasive, the
Board’s refusal of Appellants’ mark STOP THE
ISLAMISATION OF AMERICA is affirmed.
AFFIRMED