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Anti-Islam Trademark Application's Denial Affirmed by Fed. Cir.

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By Gabriella Khorasanee, JD on May 20, 2014 3:55 PM

The Federal Circuit, for the first time, had the opportunity to determine whether a proposed trademark was disparaging under section 2(a) of the Trademark Act.

After thorough analysis and review of the facts on the record, the Federal Circuit adopted a test, and found that the proposed trademark in issue was in fact, disparaging.

The Proposed Mark

Pamela Geller and Robert B. Spencer filed a trademark application to use "'Stop the Islamisation of America' in connection with 'providing information regarding understanding and preventing terrorism,'" in February 2010. On January 19, 2011 the application was refused because under section 2(a) of the Trademark Act, the mark could be disparaging to American Muslims.

The Disparagement Test

Though the Federal Circuit never had an opportunity to review whether a proposed mark is disparaging, it adopted the test used by the Trademark Trial and Appeal's Board in In re Lebanese Arak Corp., which requires a court to determine two things: (1) the "likely meaning"; and (2) whether the meaning refers to "identifiable persons."

Meanings and Referenced Groups

Here, the Board found two possible meanings for Islamisation. The first meaning, a religious meaning, was meant to refer to conversion to Islam. The secondary meaning, is a political meaning, and found to refer to sectarian efforts to make society subject to Islamic law. The applications argued that they only meant to refer to the secondary meaning, but the court was not convinced. It then went on to find that Board correctly found the proposed mark disparaging toward Muslim Americans, and affirmed the Board's denial of the application.

This case is playing out not only in the shadows of 9/11, but while continuing controversy surrounds the use of the Redskins trademark. This case may end up having an influence at the United States Patent and Trademark Office where the Washington NFL team's trademark may be revoked, reports Reuters.

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