Outspoken anti-Muslim activist Pamela Geller felt the need to protect her brand.
Geller, perhaps best known for leading the charge in 2010 against construction of a mosque near Ground Zero in New York, is the founder of “Stop Islamization of America,” a group that wants to educate Americans about “Islamic domination and expansionism.” It has been labeled a hate group by the Southern Poverty Law Center.
On Tuesday, the U.S. Court of Appeals for the Federal Circuit rebuffed the controversial blogger’s attempt to trademark “Stop the Islamisation of America,” upholding the Trademark Trial and Appeal Board’s finding that the name disparages Muslims. (The word “Islamization” appeared with an “s” and a “z” in different parts of the opinion — the court found the spelling variation “immaterial.”)
The trademark board can refuse applications for trademarks that disparage persons, institutions, beliefs or national symbols. The board had denied Geller’s application, finding that the words “Stop the Islamisation of America” associated Islam with terrorism, a characterization many Muslims are likely to find offensive.
The board cited Geller’s Web site, which quoted a source who said 80 percent of American mosques are controlled by extremists. They also cited an ad campaign Geller sponsored that offered assistance to Muslims thinking of leaving their faith.
Geller’s attorney, David Yerushalmi, said the board distorted Geller’s words, which merely oppose “Islamist Muslim Brotherhood groups” that “use mosque-building as a political tool to accomplish Islamization.” At oral argument, he said “all of the record points to the fact that Islamization ultimately includes terrorism.”
Geller agreed. In an e-mail to The Washington Post, Geller said the ruling is “evidence of how the federal government, and especially the courts, continue to bend over backwards to kowtow and placate Muslim sensitivities … they are afraid of the response from Islamic supremacists.” Geller plans to appeal the decision, which she called “unconstitutional.”
Legal expert Eugene Volokh, whose blog is hosted by The Washington Post, was sympathetic to Geller’s views on the outcome of the case, though not necessarily to her ideological position.
My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination. But I’m not sure that courts will ultimately see this my way; so far they haven’t been inclined to do so, precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.
The court’s decision doesn’t bar Geller from using the phrase “Stop Islamization of America.” It just denies legal protections that would let Geller prevent other groups from using the name commercially.