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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Free Speech Comes to Dearbornistan

John R. Houk

© June 1, 2011

Dearborn, MI was once a powerhouse of automobile and machine building plants in America. I know we call Detroit the Motorcity but a lot of the workers either worked in Detroit suburbs or lived in Detroit suburbs. Auto magnate Henry Ford brought car mass production to Dearborn. Indeed Dearborn is the city Henry Ford died in.

Dearborn is quickly becoming known as a place of growing radical Islamic population. Hence many bloggers including myself have referred to the city as Dearbornistan rather than Dearborn. The Muslim population for Dearborn is immense as this pro-Dearbornistan Muslim article does show.

Recently a Christian from Sudan – George Saieg – was arrested for distributing Christian tracks on the public sidewalks of Dearborn. He sued Dearborn for violating his Free Speech Rights. Saieg lost the suit in Federal Court. The Good News though is this: Saieg won a 2-1 split decision from the Sixth Appellate Court.

Finally, Stealth Jihad via creeping Sharia Law has taken a hit in the Federal Judicial System. The corrupt City Hall and Chief of Police of Dearborn have been validating a nose-thumbing at the U.S. Constitution First Amendment guaranteeing religious freedom and freedom of speech for some time to allow the intolerance of Sharia Law to be practiced.

You can watch an example of the Dearborn Storm Troopers violating the First Amendment HERE.

ACT for America sent a copy of an Andrew Bostom article writing about Saieg’s judicial victory in Appellate Court.

JRH 6/1/11

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Victory over sharia in Dearborn, MI

Sent by ACT for America

Sent: 5/31/2011 1:19 PM

Andrew Bostom, one of the featured speakers at our upcoming national conference, posted some great news over the weekend (see below).

Thanks to the efforts of our friends at the Thomas More Law Center, a judge ruled the free speech rights of a Christian evangelist trumped the efforts of Dearborn, Michigan to, in effect, impose sharia law’s suppression of free speech.

Note especially the highlighted portion below regarding attitudes among Detroit-area Muslims regarding the imposition of sharia law.

Time is running out to register for our June 22 – 24 National Conference and Legislative Briefing. The conference is now over 95% sold out. Visit here to register today!

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First Amendment Trumps Sharia in Dearborn

By Andrew Bostom

May 29th, 2011 by Andrew Bostom

Andrew Bostom: Uncreated, Uncreative Words

A seminal, if ominous report released May 17, 2011 by the Center for Security Policy described fifty appellate court cases from 23 states which involve conflicts between Islamic law—Sharia—and American state law. Nothwithstanding the delusive mindslaughter on display across America’s political spectrum which denies Sharia encroachment in the US, the CSP analysis revealed that,

Sharia has been applied or formally recognized in state court decisions, in conflict with the Constitution and state public policy.

But the grim, seemingly inexorable, progressive acceptance of Sharia-based mores in the US—despite this totalitarian religio-political “law” being antithetical to American law—was at least temporarily reversed late last week, in of all places, Dearborn, Michigan. The 6th U.S. Circuit Court of Appeals ruled 2:1 on Thursday May 26, 2011 (in GEORGE SAIEG, Plaintiff-Appellant, v. CITY OF DEARBORN; RONALD HADDAD, Dearborn Chief of Police ) that Dearborn, and its police department, violated the free-speech rights of a Christian evangelist by barring him from handing out leaflets at an Arab-American street festival last year. The court’s two judge majority opinion concluded,

On the free speech claim, we REVERSE the district court’s grant of summary judgment to the defendants and its denial of summary judgment to the plaintiffs. We thereby invalidate the leafleting restriction within both the inner and outer perimeters of the Festival.1 The restriction on the sidewalks that are directly adjacent to the Festival attractions does not serve a substantial government interest. The City keeps those same sidewalks open for public traffic and permits sidewalk vendors, whose activity is more obstructive to sidewalk traffic flow than pedestrian leafleting is. Moreover, the prohibition of pedestrian leafleting in the outer perimeter is not narrowly tailored to the goal of isolating inner areas from vehicular traffic. The City can be held liable because the Chief of Police, who instituted the leafleting restriction, created official municipal policy.

Elaborating on the issue of Dearborn’s liability for depriving George Saieg, an American Christian pastor of Sudanese descent, of his first amendment rights, the judges opined,

The City may be held liable for the restriction of Saieg’s free speech rights that the leafleting restriction caused. A municipality is liable if a constitutional injury results from a policy or custom “made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1978). In this case, the City approved the Festival “subject to . . . the rules and regulations of the Police Department.” R. 47-13 (Ex. M: Council Resolution)…Chief Haddad described the leafleting policy as his department’s policy, subject only to the approval of the city council and the mayor. R. 47-11 (Ex. K: Haddad Dep. at 95–96) (stating that “the police department will supply the standards that must be met,” such as the “prohibition of individuals handing out . . . materials on the public sidewalk”). The police department’s leafleting policy, made with the authority that the City Council delegated to it, fairly represents official City policy. Therefore, Saieg may hold the City liable for violating his First Amendment right to free speech.

Most remarkably, the majority opinion of Justices Moore and Clay included a salient observation revealing how these judges understood the Sharia-based objections to non-Muslim proselytization which motivated Dearborn’s attempt to abrogate Pastor Saeig’s freedom of speech—mainstream Islam’s continued rejection of freedom of conscience:

Saieg also faces a more basic problem with booth-based evangelism: “[t]he penalty of leaving Islam according to Islamic books is death,” which makes Muslims reluctant to approach a booth that is publicly “labeled as . . . Christian.” R. 48 (Ex. A: Saieg Dep. at 75). Saieg believes that evangelism is more effective when he can roam the Festival and speak to Muslims more discreetly.

Roberta Aluffi Beck-Peccoz, Associate Professor of Comparative Law at the University of Turin, made this rather understated assessment of contemporary Islamdom’s strict opposition to the proselytization of Muslims by non-Muslims—rooted in the Sharia, and ultimately, the grave offense of “ridda,” or apostasy from Islam, deemed “treasonous” against the Muslim community, and punishable by death under Islamic Law—published in 2010:

Islamic States have always strongly opposed this specific freedom [i.e., freedom of conscience as per the first amendment of the US Bill of Rights, or more specifically article 18 of the Universal Declaration of Human Rights], claiming that it contravenes Islamic Law. [Note: It does, and that is why the 57 Muslim nation Organization of the Islamic Conference drafted and ratified the antithetical Cairo Declaration which insists upon having Sharia exert supremacy over all “manmade” law!]…Moreover they express fear that proselytism represents a kind of foreign interference in their internal affairs. Consistently, Islamic States do not favor proselytism; they sometimes tend to restrict it even in its lightest forms, such as the simple expression of one’s intimate beliefs…Proselytism is perceived as a major threat to the coherence and cohesion of the umma [i.e., the global Muslim community]: it can lead to ridda [apostasy from Islam] the paradigm of political treason, or fitna, the temptation, the civil war involving doctyrinal dissensions…

Even in moderate, pseudo-secular Arab Tunisia—prior to the “Jasmine revolution” which may have already empowered the formerly banned Tunisian branch of the Muslim Brotherhood under Rachid Ghannouchi—according to a 2010 US State Department report,

It was illegal to proselytize to Muslims as the government viewed such efforts as disturbing the public order.

Neighboring Morocco, also deemed “moderate,” aggressively deports Christians who dare proselytize to Muslims. The globally representative Sharia-based penal law (circa1982) of Comoros (the Muslim archipelago island nation in the Indian Ocean, located off the eastern coast of Africa, on the northern end of the Mozambique), for example, defines the “criminal” proselytizer as one who, “…indulges, promotes, or teaches Muslims a religion other than Islam.”

The attempt by Dearborn’s large Muslim population to enforce Sharia-based injunctions against non-Muslim proselytism confirms local attitudes documented via polling data collected in 2003, and reported during 2004. “The Detroit Mosque Study: Muslim Views on Policy and Religion,” was conducted by Ihsan Bagby an Associate Professor of Islamic Studies at the University of Kentucky and a fellow at the Institute for Social Policy Understanding—a Muslim organization. Data were gathered during the summer of 2003 and published online in 2004.

These alarming results were described on page 37 of the report:

Mosque participants were asked, whether they agree or disagree with the statement, “Shari’ah should be the law of the land in Muslim countries?”

Apply Islamic Law in Muslim Lands [Bold by SlantRight]

Strongly Agree — 59%
Somewhat Agree — 22%(i.e., collectively = 81%) [Yellow Emphasis ACT for America]

Somewhat Disagree — 8%
Strongly Disagree — 3%
Don’t Know — 8%

Such data supposedly reflected the Detroit area (read Dearborn) Muslims views of “Islamic countries,” only. But given the intrinsic, universally supremacist nature of Islam and the global umma (i.e., as stated in Koran 3:110, and the Orwellian-named Universal Declaration of Human Rights in Islam, “Ye are the best community that hath been raised up for mankind. Ye enjoin right conduct and forbid indecency; and ye believe in Allah”), once an area has a Muslim majority it is assumed by Muslims that Islamic Law should prevail—hence the “enclave” phenomenon, now evident in the United States.

Following the issuance of the verdict, Pastor Saeig’s intrepid attorney, Robert Muise of the Thomas More Law Center, made these apposite remarks, which all who cherish our unique Western freedoms must heed, and support:

Everybody should be pleased. Dearborn is getting a pretty strong reputation as being the enemy of the First Amendment. As long as they keep passing these draconian restrictions that violate the rights of everyone, we’re going to challenge them.

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Free Speech Comes to Dearbornistan

John R. Houk

© June 1, 2011

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Victory over sharia in Dearborn, MI

ACT for America is an issues advocacy organization dedicated to effectively organizing and mobilizing the most powerful grassroots citizen action network in America, a grassroots network committed to informed and coordinated civic action that will lead to public policies that promote America’s national security and the defense of American democratic values against the assault of radical Islam. We are only as strong as our supporters, and your volunteer and financial support is essential to our success. Thank you for helping us make America safer and more secure.

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First Amendment Trumps Sharia in Dearborn

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