Rare Federal Circuit Case Upholds Rejection of Trademark as Disparaging

Trademark applications, when rejected, are most frequently rejected because the are directed to marks which are confusingly similar to marks already registered. Consequently, many people believe that as long as there isn’t an earlier-registered similar mark, their trademark can be registered. However, there are a whole host of formal, procedural, and substantive requirements in a trademark application, any of which can trip the application up and cause it to be abandoned.

One such requirement is that the application not be disparaging. “No trademark … shall be refused registration … unless it (a) [c]onsists of or comprises … matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 USC 1052(a). This provision is rarely argued, but a recent case brought it into focus, perhaps in anticipation of the WASHINGTON REDSKINS disparagement decision from the Trademark Trial and Appeal Board. Applicants Geller and Spencer attempted to register the mark STOP THE ISLAMISATION OF AMERICA in connection with “providing information regarding understanding and preventing terrorism.” The TTAB held, and the Federal Circuit agreed, that the mark was disparaging to Muslims, primarily because of the association it perpetuates of Muslims with both violence and terrorism. Notably, Geller and Spencer have very publicly opposed the construction of a mosque near Ground Zero. And while the US has merely refused registration of their trademark, England actually prohibited the two from entering the country to speak at an English Defence League rally in London last year.

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