A mark found to be disparaging.

Kumiko Ide | May 28, 2014

In re Geller

May 13, 2014

Panel: Newman, O’Malley, Wallach. Opinion by Wallach

Summary

The CAFC affirmed the Trademark Trial and Appeal Board’s refusal to register the mark STOP THE ISLAMISATION OF AMERICA in connection with the services of “understanding and preventing terrorism” because the mark may be disparaging to American Muslims pursuant to § 2(a) of the Trademark Act.

米国連邦巡回裁判所(CAFC)は、STOP THE ISLAMISATION OF AMERICA商標の出願は、米国商標法第2条(a)に基き、米国のイスラム教徒に対して中傷的(disparaging)であるとして、登録を却下した商標審判部(TTAB)の判断を支持した。

Details

Appellants filed an application to register the mark STOP THE ISLAMISATION OF AMERICA in connection with the services of “understanding and preventing terrorism.”  The Examining Attorney refused the application on the ground that the mark may be disparaging to American Muslims, and issued a § 2(a) refusal.  Applicants appealed, and the Board affirmed the refusal.

Section 2(a) of the Trademark Act provides that the Board may refuse an application for a mark that “Consists of or comprises … matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  To determine whether a mark may be disparaging, the Board applies the following two-part test:

(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 USPQ2d 1215, 217 (TTAB 2010).

Under the first prong of the disparagement test, the Board found the term “Islamisation” had two likely meanings: (1) “the conversion or conformance to Islam” (“the religious meaning”) and (2) “a secretarinization of a political society through efforts to ‘make [it] subject to Islamic law'” (“the political meaning”).

On appeal, Appellants argued 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.”

The Board relied on several evidence in support of the religious meaning of the word “Islamisation,” including dictionary definitions, essays posted on Appellants’ own website discussing opposition to construction of mosques in the United States and a campaign to provide “assistance” to Muslims considering leaving the Islamic faith, and readers’ comments posted on Appellants’ website.

The CAFC agreed with the Board that in reviewing the essays posted on Appellants’ website, Appellants used the mark in the context of stopping the spread of the Islamic faith, and not only opposing political Islamisation.  While Appellants also argued that the Board improperly relied on anonymous comments posted on their website, the CAFC ruled that the comments provide additional insight into the public’s perception of the mark used in connection with the services, and that such comments showed the religious meaning of Islamisation.

Under the second prong of the disparagement test, the Board found that both the religious and political meanings of Islamisation refer to all American Muslims, and the mark may be disparaging under both meanings.

The CAFC found that with respect to the religious meaning, using the mark in connection with preventing terrorism directly associated the followers of Islam to terrorism.  In addition, with respect to the political meaning, the Board found, and the CAFC agreed, that “associating peaceful political Islamisation with terrorism would be disparaging to a substantial composite of American Muslims.”

The CAFC therefore affirmed the Board’s refusal to register the mark.

Take away

Statements or messages used in connection with particular services can be subject to a § 2(a) refusal if it may be disparaging to a substantial composite of the referenced group.

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