HUGE Free Speech Victory for SIOA

You do realize Left Wing Multiculturalist thinking has hampered Counterjihad writers and/or organizations to utilize proper legal protections for their brand, right? Well, that might actually be ending soon.

Simon Shiao Tam won his appellate case that will force the United States Patent and Trademark Office (USPTO) to register trademarks for organizations that may have a name that a race or group of people may find offensive. In Mr. Tam’s case it was to register the trademark “Slant” as representative of his Asian-American dance rock band. A whole slew of Conservative civil rights organizations joined Mr. Tam’s suit because the outcome affected many others denied a trademark by the USPTO under a Federal Law prohibiting trademarked names to include disparaging words as defined by the government.

One of those beneficiaries of the suit won by Tam was Pamela Geller who was a bit miffed when the USPTO rejected the SIOA and AFDI registered trademark names fighting the civil rights abuses that Islam’s Sharia Law does to Western Rights and the American Constitution in particular. Below is Geller’s victory dance post celebrating the Tam decision in a Federal Circuit Court.

JRH 12/24/15 (Hat Tip: Marlene of Out Spoken Patriots Google + Group)

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

By Pamela Geller

December 22, 2015

PamelaGeller.com – Atlas Shrugs

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 :)

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.

The USPTO had rejected AFDI’s trademark application [bad link] 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. 

 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

[Blog Editor: The above link is to the Federal Circuit Court of Appeals decision entitled, “Federal Circuit en banc opinion In re Simon Shao Tam rejecting 2(a) trademark disparagement”. Below is the embed from Scribd of that decision.]

In re Tam Fed Circuit en Banc Opinion by Jennifer Elgin

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”

As 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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Pamela Geller Biography

Pamela Geller is the founder, editor and publisher of Atlas Shrugs.com and President of the American Freedom Defense Initiative (AFDI) and Stop Islamization of America (SIOA). She is the author of The Post-American Presidency: The Obama Administration’s War on America, with Robert Spencer (foreword by Ambassador John Bolton) (Simon & Schuster) and Stop the Islamization of America: A Practical Guide to the Resistance (WND Books). She is also a regular columnist for World Net Daily, the American Thinker, Breitbart.com and other publications.

Geller’s activism on behalf of human rights has won international notice. She is a foremost defender of the freedom of speech against attempts to force the West to accept Sharia blasphemy laws, and against Sharia self-censorship by Western media outlets. Her First Amendment lawsuits filed nationwide have rolled back attempts to limit Americans’ free speech rights and limit speech to only one political perspective, and exposed attempts to make an end-run around the First Amendment by illegitimately restricting access to public fora. Her free speech event in Garland, Texas led to the capture or killing of several murderous jihadists, smoking out terror cells, leading to an increase in the threat level to BRAVO and to the consequent arrests of jihadists in several states.

Geller has also led awareness campaigns in … READ THE REST

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Fed Judge Blasts CAIR in “Muslim Mafia” Case

The CAIR/Muslim Mafia litigation is a classic example of Lawfare/Legal Jihad utilized by Muslims in an attempt to silence those exposing the dark side of Islam. The book “Muslim Mafia – Inside the Secret Underworld That's Conspiring to Islamize America” exposes the nefarious agenda of CAIR with its connection to both the Muslim Brotherhood and the Islamic terrorist organization Hamas. Since CAIR attempts to bill itself as Muslim human rights organization in America the truth tarnishes their reputation and credibility.

Here we are in 2013 and this litigation initiated by CAIR circa 2009 is still going on. Finally though there appears to be light at the end of the tunnel for the authors of the Muslim Mafia because the Federal Judge adjudicating the lawsuit has delivered a legal defeat to CAIR by ruling against an extension on the ludicrous continuation of needless discovery by the CAIR legal team. Creeping Sharia has the story.

JRH 2/14/13

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Fed Judge Blasts CAIR in “Muslim Mafia” Case

By Creeping

February 14, 2013

Creeping Sharia

Last Friday, Federal Judge Colleen Kollar-Kotelly, sitting in the United States District Court for the District of Columbia, denied the Council on American-Islamic Relations’ (CAIR) motion to extend discovery in the American Freedom Law Center’s defense of the Center for Security Policy (CSP) and several of its employees, who were sued by CAIR for conducting an undercover documentary designed to expose the Islamic organization’s corrupt activities.

Following the reasoning argued by AFLC Co-Founder and Senior Counsel David Yerushalmi in an opposition brief that was filed on behalf of all defendants, Judge Kollar-Kotelly denied CAIR’s request to depose two non-party witnesses in the case, ruling that the request was untimely, without cause, and would “not only disrupt the Court’s management of its docket, but would also prejudice Defendants by necessarily stinting mediation efforts and delaying the potential resolution of this matter through dispositive motions.”

The Court, however, went even further and scolded CAIR and its in-house legal counsel for their “inability to efficiently manage their discovery in this matter and to comply with the Court’s Scheduling and Procedures Order.”  As the Court pointed out, even CAIR’s motion seeking more time for discovery was itself untimely and substantively deficient.

Yerushalmi, who is the lead counsel for all defendants, commented: “Not only did CAIR’s substantively deficient motion violate the Court’s orders in several pertinent respects; it was a blatant and patently false presentation of the discovery record in this case.  Indeed, this misrepresentation is just a part of CAIR’s pattern of taking a troubling and seemingly abusive approach to civil litigation.  Accordingly, Judge Kollar-Kotelly’s ruling demonstrates that the Court is aware of CAIR’s unprofessional tactics, which in turn speaks to the failure of CAIR to meet its burden of proof and provide any probative evidence of wrongdoing by any of the defendants.”

Yerushalmi commented: “This litigation has been ongoing since October 2009.  As such, there is nothing to be gained and much to be lost by re-opening and extending discovery.  This case is ripe for summary judgment.”

The Court agreed with AFLC’s brief, denied CAIR’s motion, and will soon set a schedule for motions that could bring this case to a close by ruling in favor of Defendants and exposing CAIR as the center of a Muslim Brotherhood, mafia-like organization.

Excerpts from Muslim Mafia here:

Muslim Mafia: First look at undercover infiltration of CAIR

Muslim Mafia: More excerpts from inside CAIR

Rogues gallery of terror-tied CAIR leaders

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“Creeping Sharia” is a phenomenon scourge occurring across the free world. We’ll define it as “the slow, deliberate, and methodical advance of Islamic law (sharia) in non-Muslim countries” (literal definitions below). Another frequently used term is ‘stealth jihad’.

To the general public, justifiably pre-occupied with work, family, pleasure, dreams, hopes, goals, and the stresses of each, “creeping sharia” goes mostly unnoticed. Until, that is, a particular event generates enough concern from those who focus on the “creep” that the general public takes notice. These singular events are sometimes less worrisome, but taken in whole, the uncoordinated yet explicit goal of the ummah and worldwide caliphate become obvious and alarming.

Hence the birth of the “Creeping Sharia” blog.

The blog will focus on … READ THE REST