HUGE Free Speech Victory for SIOA: Federal Circuit Court Reverses 70-Year “Unconstitutional” Ban

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Longtime Atlas readers are quite familiar with our First Amendment trademark case. We have been fighting to trademark SIOA (Stop Islamization of America) but were repeatedly refused because it considered “disparaging” to Muslims. It was, in effect, an application of sharia law (‘do not criticize Islam.’)

Today we had a big victory against this fascist-style ban. The Federal Circuit Court of Appeals  just reversed 70 years of holdings that said there is no First Amendment protection in trademark cases. In reversing, it held as unconstitutional the “disparaging” prohibition, citing SIOA first and frequently.

What a wonderful Christmas miracle 🙂

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The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement pro- scription of § 2(a) is unconstitutional.

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The USPTO had rejected AFDI’s trademark application based on the following analysis:

 “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)

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.”

Now that Federal Circuit Court of Appeals has held as “unconstitutional” the disparaging prohibition we are going to move forward with getting our trademark.

government enacted this law—and defends it today— because it disapproves of the messages conveyed by disparaging marks. It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys. That principle governs even when the government’s message-discriminatory penalty is less than a prohibition.

Courts have been slow to appreciate the expressive power of trademarks. Words—even a single word—can be powerful. Mr. Simon Shiao Tam named his band THE SLANTS to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech. Another rejected mark, STOP THE ISLAMISATION OF AMERICA, proclaims that Islamisation is undesirable and should be stopped. Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communi- ties. But the First Amendment protects even hurtful speech.

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The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement pro- scription of § 2(a) is unconstitutional. Because the gov- ernment has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech.

This is a big case – and it won’t only affect us but the Washington Redskins, the rock band

Here are some of the salient pssages in the finding:

Importantly, every time the PTO refuses to register a mark under § 2(a), it does so because it believes the mark conveys an expressive message—a message that is dis- paraging to certain groups. STOP THE ISLAMISATION OF AMERICA is expressive. In refusing to register the mark, the Board explained that the “mark’s admonition to ‘STOP’ Islamisation in America ‘sets a negative tone and signals that Islamization is undesirable and is something that must be brought to an end in America.’” Geller, 751 F.3d at 1361.

We limit our holding in this case to the constitu- tionality of the § 2(a) disparagement provision. Recogniz- ing, however, that other portions of § 2 may likewise constitute government regulation of expression based on message, such as the exclusions of immoral or scandalous marks, we leave to future panels the consideration of the § 2 provisions other than the disparagement provision at issue here. To be clear, we overrule In re McGinley, 660 F.2d 481 (C.C.P.A. 1981), and other precedent insofar as they could be argued to prevent a future panel from considering the constitutionality of other portions of § 2 in light of the present decision.

A disparaging mark is a mark which “dishonors by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust comparison.” Geller, 751 F.3d at 1358 (alterations omitted). To deter- mine if a mark is disparaging under § 2(a), a trademark examiner of the PTO considers:

Trademark Manual of Exam. Proc. (“TMEP”) § 1203.03(b)(i) (Jan. 2015 ed.) (citing Geller, 751 F.3d at 1358). If the examiner “make[s] a prima facie showing that a substantial composite, although not necessarily a majority, of the referenced group would find the proposed mark, as used on or in connection with the relevant goods or services, to be disparaging in the context of contempo- rary attitudes,” the burden shifts to the applicant for rebuttal. Id. If the applicant fails to rebut the prima facie case of disparagement, the examiner refuses to register the mark. The Trademark Manual of Examining Procedure does not require an examiner who finds a mark disparaging to consult her supervisor or take any further steps to ensure the provision is applied fairly and consist- ently across the agency. Compare TMEP § 1203.03 (no discussion of action to take if examiner finds mark dis- paraging), with TMEP § 1203.01 (requiring examiner who finds a mark scandalous or immoral to consult his super- visor). A single examiner, with no input from her super- visor, can reject a mark as disparaging by determining that it would be disparaging to a substantial composite of the referenced group.

Second, the disparagement provision at issue is view- point discriminatory on its face. The PTO rejects marks under § 2(a) when it finds the marks refer to a group in a negative way, but it permits the registration of marks that refer to a group in a positive, non-disparaging man- ner. In this case the PTO refused to register Mr. Tam’s mark because it found the mark “disparaging” and “objec- tionable” to people of Asian descent. Tam, 2013 WL 5498164, at *6. But the PTO has registered marks that refer positively to people of Asian descent. See, e.g., CELEBRASIANS, ASIAN EFFICIENCY. Similarly, the PTO has prohibited the registration of marks that it found disparaged other groups. See, e.g., Pro-Football, 2015 WL 4096277 (affirming cancellation of REDSKINS); Geller, 751 F.3d 1355 (affirming rejection of STOP THE ISLAMISATION OF AMERICA); Lebanese Arak Corp., 94 U.S.P.Q.2d 1215 (refusing to register KHORAN for wine); Heeb Media, 89 U.S.P.Q.2d 1071 (refusing to register HEEB); Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264 (refusing to register SQUAW VALLEY for one class of goods, but registering it for another). Yet the government registers marks that refer to particular ethnic groups or religions in positive or neutral ways—for example,

NAACP, THINK ISLAM, NEW MUSLIM COOL, MORMON SAVINGS, JEWISHSTAR, and PROUD 2 B CATHOLIC.

Federal Circuit Court of Appeals on First Amendment Protection on Trademarks by Pamela Geller

UPDATE: Here’s our law firm’s take:

Federal Circuit Court of Appeals Finds First Amendment Applies to Trademarks and Rules that “Disparaging” Cannot Be Used to Deny Expressive Trademarks Like “Stop Islamisation of America”

SIOAAs a kind of Christmas present to liberty and the U.S. Constitution, the Federal Circuit Court of Appeals, sitting en banc (the entire court), today reversed more than 30-years of jurisprudence by holding that trademark registration under the Lanham Act deserves First Amendment protection.  The import of this holding is that trademarks may no longer be rejected by the United States Patent and Trademark Office (“USPTO”) just because the USPTO believes the mark to be disparaging.

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.

However, on the heels of the SIOA decision, by the time the Slants case found its way to the important Federal Circuit Court, the appellate judges were apparently ready to reverse their prior rulings which rejected any First Amendment arguments.  Indeed, the court’s opinion starts off referencing the USPTO’s rejection of the SIOA trademark as a rejection aimed improperly at censuring important expressive speech.  The court went on to reference SIOA, and the underlying case of In re Geller, no less than seven times.

David Yerushalmi, AFLC co-founder and Senior Counsel, noted:

“This demonstrates an important adage about good lawfare and good lawyering.  Even when you lose initially you may still ultimately prevail because good, hard-fought lawfare has a way of exposing bad law and bad judgments.  This is one of those rare instances where a federal court has emphatically and quite properly reversed itself.  You can be certain that our clients will now proudly seek federal trademark registration.”

Robert Muise, AFLC co-founder and Senior Counsel, added:

“At the end of the day, this was a complete victory for the First Amendment and an absolute defeat for political correctness.  Our SIOA trademark case paved the way for this important decision, reaffirming that hard work, determination, and some good lawyering can create a favorable sea change in the law.”

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John Howard
John Howard
8 years ago

Bravo! Free speech doesn’t mean only speech you like. It means ALL speech.

Steve
Steve
8 years ago
Reply to  John Howard

Yes, I wonder did someone slip something into their eggnog for them to actually make a ruling that makes sense.

Steve Stevens
Steve Stevens
8 years ago

Great News! Can I use SIOA logo as my avatar please?

Dr NJ
Dr NJ
8 years ago
Reply to  Steve Stevens
Dr NJ
Dr NJ
8 years ago
Reply to  Steve Stevens

http://m.nydailynews.com/news/world/brit-pedophile-facebook-groom-victims-young-12-article-1.2476656

What can I say, I’ve got hundreds from today’s news alone…..all white gentlemen.

Dr NJ
Dr NJ
8 years ago
Reply to  Dr NJ

Guess you’re hurting, did your dad touch you?…..I’ll bet you were his favourite kid, more of a girl than your sis???

RCCA
RCCA
8 years ago

Congratulations! It’s a big case for freedom. Big win for AFDI.

pogee
pogee
8 years ago

We LOVE you, Ms. Geller!!!

The Mad Jewess
The Mad Jewess
8 years ago

I have been BANNED on 20 plus websites now. Deal with this; Liberal OR Right wing, your freedom is GONE

IzlamIsTyranny
IzlamIsTyranny
8 years ago
Reply to  The Mad Jewess

Wow. This is how the noose of islamic-fascism draws ever tighter.

The Mad Jewess
The Mad Jewess
8 years ago
Reply to  IzlamIsTyranny

I cant stand Islam, but make NO mistake: If it were not for these LIBERAL SLOBS, Islam would not even BE here.

IzlamIsTyranny
IzlamIsTyranny
8 years ago
Reply to  The Mad Jewess

We can’t forget all the paid-off traitors as well. the C-l-i-n-t-o-0-n-s, the Rick Perrys, the Chris Christies, the Carters.

Waykent
Waykent
8 years ago
Reply to  The Mad Jewess

Ergo, you are a hypocrite n

Dupper bob
Dupper bob
8 years ago

The government isn’t following or enforcing its own laws when those laws conflict with policy.

IzlamIsTyranny
IzlamIsTyranny
8 years ago
Reply to  Dupper bob

You description seems somewhat reminiscent of the definition of a dictatorship.

Steve
Steve
8 years ago
Reply to  Dupper bob

Yes, Its funny how they pick and choose with their good old partisan side! I think in many of these politician’s cases the great equalizer between either side in keeping the masses under control is a big wallet.

WhoopThereItIs
WhoopThereItIs
8 years ago

Suck on that!!!

dba_vagabond_trader
dba_vagabond_trader
8 years ago

Congratulations, you are a freedom warrior Pam!

Mahou Shoujo
Mahou Shoujo
8 years ago

This is nothing less than a Christmas miracle, a court has actually ruled in favour of freedom and human rights. Against islam. Rejoice and be glad, there is still a vestige of justice and common sense in the Federal courts.

Nat's daughter
Nat's daughter
8 years ago

Thank you Pamela. You da best and Americans love you.

Iamnumber6
Iamnumber6
8 years ago

Don’t get excited, I am sure pResident Obola will intervene and use an executive order to continue to deny your freedom. It is what he does.

IzlamIsTyranny
IzlamIsTyranny
8 years ago
Reply to  Iamnumber6

Does 0mama have the authority to do so? I didn’t think the executive branch had the power to abrogate judicial rulings?

Iamnumber6
Iamnumber6
8 years ago
Reply to  IzlamIsTyranny

All sarcasm aside, does it even matter anymore? The judges froze his deferred action but by most accounts, he proceeds by just not enforcing any laws pertaining to deportations. Obola is a tyrant and at this point I fear little is beyond or beneath him.

Sackville1683
Sackville1683
8 years ago

Dear Pamela,

Congratulations, Pamela!!! What a glorious day for freedom. This is not a miracle, this is a result of your hard work. These are the things that matter and this is a biggie. THANK YOU for everything you do.

pdxnag
pdxnag
8 years ago

One could make the argument that Islam is obscene and appeals to prurient interests because it commands conquest and embraces the reward of sex slaves, particularly girls as young as 12, if not younger. Islam is patently offensive by contemporary community standards, at least where Muslims do not yet have a majority who can redefine contemporary community standards to instead make it worthy of celebration among Islamic Supremacists.

Islam is a dirty word. Promotion of sex slavery, even exemption of the same from criticism, is hardly a good thing.

Look up something less bad than sex slavery:

Child pornography laws in the United States
https://en.wikipedia.org/wiki/Child_pornography_laws_in_the_United_States

Islam is worse in so many other ways too.

Arkansas MIke
Arkansas MIke
8 years ago

Way to go Pamela & Team! Your victory is a victory for America!

Nipperdoodle
Nipperdoodle
8 years ago

Poor Cruella Lynch! This has gotta be royally pissin’ her off!!! Ha ha ha ha ha!!! LMFAO!!!!!

Bradley Lexvold
Bradley Lexvold
8 years ago

Why did this ever have to go to court? Nonsense! Pro-Choice offends me, it advocates killing innocent. Looks like targeting. If you were selling something that was time sensitive, a delay could put you out of business. This is wrong on so many levels! Demand costs, but that wouldn’t be adequate in most cases. Read founding fathers comments called Federalist Papers and David Barton’s research, as someone along the line here didn’t and needs to be fired.

Dave from San AntonioD
Dave from San Antonio
8 years ago

It is “targeting”. Our gov’t. has been using Psyops for years against us and trying to change or mold our way of thinking about freedom. They’ve been very involved in this as a form of “control”. They use this method…and eventually…people begin to think the “change” came from them and not the gov’t trying to control us. Political Correctness…just another form of this.

Bradley Lexvold
Bradley Lexvold
8 years ago

If you let Psyops work to influence you, that is an admission of a character defect. The worst lies are the lies we tell ourselves. Psyops works on weak willed. Others are filled with indignation and try to replace government. https://www.youtube.com/watch?v=PKRgv9r61jo http://www.secedelinks.org Your response was right on the money.

Iamnumber6
Iamnumber6
8 years ago

I disagree. Not weakness of character at all. It is hard to avoid now. Google and facebook are hard at work amassing more and more of the intimate details of peoples’ lives. Even more so the behavioral patterns and predictions. Social media gives control by fostering groupthink and using social sanction of the group to mold opinion. It only gets worse from here. How ironic that people willingly give their controllers the information to control them.

Bradley Lexvold
Bradley Lexvold
8 years ago
Reply to  Iamnumber6

If social sanction has the ability to mold opinion, that is an admission of a weakness of character.

Iamnumber6
Iamnumber6
8 years ago

You are of course right, I stand corrected.

Bradley Lexvold
Bradley Lexvold
8 years ago
Reply to  Iamnumber6

I remember what an atheist high school teacher once said, take all criticism constructively, even if it was meant as an insult. It was just an observation, and do with it as you will. Brad

Steve
Steve
8 years ago

Good luck getting the majority of people to live up to not being weak sometimes. Its better for everyone to be exposed with counter education so they can live up to your super ability.

Steve
Steve
8 years ago
Reply to  Iamnumber6

You are on the money. With information overload and all the push and shove of everyday life some of the junk slips in and social media and work pressure has its effects as you suggest. Groupthink is one reason i stay out of the office as much as possible!

Steve
Steve
8 years ago

Psy Ops does work on weak or unaware people but in the course of everyday push and shove and trying to make ends meet, psy ops can sneak in even on the strong. Education to those unaware of its insidious nature and how it is done is better than going one up on the competition. After all, unless we want to be hermits, we’re all in the game so to speak. American individualism, while admirable and helpful, did not win the revolutionary war, or any other for that matter, as much as working together.

Bradley Lexvold
Bradley Lexvold
8 years ago
Reply to  Steve

Yes, you can fool some people some of the time, but you can’t fool all of the people all of the time. The real question is were do we go from here. In business, it isn’t a problem unless you have a solution. While not pretty seceding and starting a new gov. United States 2.0 is the best way forward. You can’t the mass of people to see their in self destruction mode until its to late. Capital of Roman Empire moved to Constantinople and never went through the dark ages. We can learn from history. When we’re successful they will want to rejoin us, but unfortunately it will take that. If you have a better plan 300,000,000 people would be glad to have it, and so would I.
Your not one of the fooled, are you willing to be part of a solution, because complaining gets real old for solution oriented people.
Thanks for the objective response, Brad

The more I read your response, the more I like it.

Jeff Ludwig
Jeff Ludwig
8 years ago

Congratulations Pam!!! I am so happy to learn of this decision.

IzlamIsTyranny
IzlamIsTyranny
8 years ago
Reply to  Jeff Ludwig

Ditto, congratulations to Mrs. Geller and Mr. Yerushalmi.

scrubjay
scrubjay
8 years ago

Congratulations, Pam for the fantastic victory for the right of free speech. Now, all I have to do is figure out what the heck is a “HEEB”?

Thomas Faddis
Thomas Faddis
8 years ago
Reply to  scrubjay

I thought it must be short for: habeeb
A derogatory term used for all arabs…(but it might actually be shortened version of Hebrew & thus anti-semitic! Who knows in this PC world of ours?!)

Tatonka
Tatonka
8 years ago

Excellent victory Pamela

Marisol Enrique
Marisol Enrique
8 years ago

CONGRATULATIONS, Ms. Geller and Mr. Spencer!! A long-fought battle and you WON!! BRAVO!! That took real chutzpah to do what you did!!

Dave from San AntonioD
Dave from San Antonio
8 years ago

Bravo! A good shot in the arm for free speech…and exposing another way our gov’t tries to control free speech…while it tries to control us…by ignoring the Constitution…except when it benefits the gov’t. Never submit.

Drew the Infidel
Drew the Infidel
8 years ago

It is worth noting that Obhammud made public remarks about the need to change the Redskins football team name but not a peep about Pamela’s case.

Chip Murray
Chip Murray
8 years ago

Congratulations Pamela! And a GREAT example of why we can never allow ourselves to be demoralized into giving up and giving in. God Bless you!

Marlene C
Marlene C
8 years ago

Thank you, you are THE BEST ! ! ??????❤ PAMELA GELLAR

scocope
scocope
8 years ago

Congratulations! I find it very interesting that Fox News chose to cover the story (in the reports I saw) by ignoring you but explaining how this impacts the Washington Redskins (and then allowed the opposing voices to wrongly claim that most Native Americans view the name as derogatory when over 70% do not). When a victory for free speech can’t even be reported on by the “conservative” news network without acquiescing to the Fascists; we are in trouble.

Steve
Steve
8 years ago
Reply to  scocope

Yes, they need to have more faith in the ratings.

Mike Kevins
Mike Kevins
8 years ago

Congratulations on your victory for freedom, Pammy! It is one step in the right direction to restoring this once great nation for future generations. Now, will they reverse the revoked trademark of the Washington Redakins

Michael Copeland
Michael Copeland
8 years ago

Excellent work, Yerushalmi, Muise, Geller and Spencer. All credit to you all for persisting. Free speech is free speech. No ifs. No buts.

Gordon Miller
Gordon Miller
8 years ago

I’m very happy for this important decision and congratulate Pamela for her courage and hard work.

mezcukor
mezcukor
8 years ago

Bravo. Great victory. The truth has won.

ParalegalGeorge
ParalegalGeorge
8 years ago
ParalegalGeorge
ParalegalGeorge
8 years ago

Congrats – it’s a LONG HARD BATTLE but the GOD Of ISRAEL will FIGHT WITH YOU and BRING VICTORY TO HIS CHILDREN !!!

BonniePrinceCharlieD
BonniePrinceCharlie
8 years ago

Islam is the only religion where you can be accused of criticizing or disparaging it if you quote directly and accurately from the Koran, the Hadith and other holy books.

NotTheMama
NotTheMama
8 years ago

Nice. Think this would help the Redskins also?

Steve
Steve
8 years ago

This is fantastic and, along with rand paul’s bill to block gun control, it makes my Christmas way much better than any fat guy leaving presents that will show up on my credit care a month from now!

No Quarter
No Quarter
6 years ago

I think tis is bigger than we realize!!!!!!!!!

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