"Stop Islamization" Trademark Refused: Applicants Decry Political Correctness in Appeal

Image on AFDI Website

A U.S. federal trademark application for an anti-sharia law campaign known as "STOP ISLAMIZATION OF AMERICA" was filed by a group called the American Freedom Defense Initiative (AFDI), a pro-Israel group founded by controversial bloggers/commentators Robert Spencer and Pamela Geller.

The AFDI had been behind a grassroots movement that sought to stop the building of a mosque in lower Manhattan, near the Ground Zero World Trade Center site, claiming that the act would offend 9/11 victims' families.

Critics such as the Southern Poverty Law Center and the Anti-Defamation League have accused the AFDI of being an anti-Muslim hate group, alleging that it promotes a conspiratorial anti-Muslim agenda under the guise of fighting radical Islam" and "seeks to rouse public fear by consistently villifying the Islamic faith and asserting the existence of an Islamic conspiracy to destroy 'American' values." 

The Trademark Office refused the group's application for a trademark on the basis that it "consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols."

The Trademark Office ruled that it must apply a two factor legal test, asking: (1) What is the likely meaning of the matter in question; and (2) is that meaning referring to identifiable persons, institutions, beliefs or national symbols, and whether that meaning is disparaging to a substantial composite of the referenced group.

The Trademark Examiner concluded that, applying this test, the likely meaning of ISLAMIZATION refers to the act of converting to Islam, and that the proposed mark effectively disparages Muslims by implying that conformity to Islam is something that needs to be stopped.

The Trademark Office cited several cases supposedly supporting its conclusion.

However, on further examination, the cases that the Examiner cited were not necessarily relevant or helpful to its case, such as when the Trademark Office found THE MEMPHIS MAFIA for entertainment services not to be matter that disparages Italian-Americans or bring them into contempt or disrepute.

The Trademark Office had further cited the controversial proceedings finding that the WASHINGTON REDSKINS trademark should be cancelled on the same grounds.

The group appealed the Examiner's final refusal to the Trademark Trial and Appeal Board (TTAB), which affirmed the rejection.

Now, the group has appealed this decision to the United States Court of Appeals for the Federal Circuit, which hears appeals from final Trademark Office refusals to register trademarks.

In the appeal brief, the AFDI's lawyer argues that:

"Appellants [Geller and Spencer] are sympathetic to the USPTO’s politically correct sensitivities enticing it to protect Muslims and indeed Islam itself from even the slightest hint of disparagement in the form of public criticism, especially in the post-9/11 age with global terrorism conducted daily in the name of Islam and the Arab Spring featuring the Muslim Brotherhood’s Islamisation program for Egypt and elsewhere melting into murder and mayhem.

The problem with these sensitivities as applied to the denial of Appellants’ Mark is that the USPTO’s beef is not with Appellants or their Mark, but rather with terrorists who claim to speak in the name of all of Islam and all Muslims.  Appellants’ Mark does not.  

One of the AFDI's NYC MTA Advertisements

'Stop the Islamisation of America' has a specific meaning that Muslims and non-Muslims in America and indeed throughout the West embrace if they treasure liberty and religious freedom for all.  In a zeal to take on the role of parens patriae and to protect Muslims from every insult, the USPTO and the TTAB have both ignored the factual record and have simply assumed meanings and understandings of the terms of the Mark that have no factual or evidentiary basis.  There is no substantial evidence to support the TTAB’s Decision or the USPTO’s denial of the Mark."

The USPTO has yet to file its response.

The AFDI has seen its fair share of federal litigation and previously triumphed. For example, in a federal lawsuit that it filed against the New York Metropolitan Transit Authority (MTA), the group succeeded in forcing the MTA to carry its advertisements on the sides of New York City buses and in the subways.

The MTA had rejected the group's advertisements, purportedly on the basis that they "demeaned" Muslims.  

The New York federal court found that the MTA had violated the Group's First Amendment rights, and ordered the MTA to run the ads.

Do Cutting Edge Anti-Counterfeiting Technologies Really Work?

Edible bar codes.

Plant-based DNA strands embedded in military hardware.

Iridescent nanotechnology inspired by butterfly wings.

These are not science fiction topics.  They describe recent developments in anti-counterfeiting technologies that are capturing mainstream news headlines for their creativity in tackling a trillion dollar a year problem facing many industries, ranging from pharmaceuticals to children's toys to military hardware.

The primary purpose of these developing technologies is to assist brand owners with better detection of counterfeit products as they infiltrate the supply chain.

For example, recent studies have discovered a "flood" of fake military hardware components making their way into the U.S. armed forces' vehicles and planes.  The safety threat posed by substandard military grade parts is unimaginable.

Using the new technology, if military hardware components are counterfeit, they will not possess the correct embedded plant DNA, which can be detected with a special inspection tool.

Similarly, the pharmaceutical industry can use edible bar codes to allow for easier tracking and authentication of pills and verification of drug packaging.  Spending by pharmaceutical companies in the anti-counterfeiting tech marketplace is predicted to exceed $1B per year in coming years.

But, while they are clearly effective at detecting counterfeits, are these cutting edge technologies addressing the deeper issues behind the continuing scourge of fake products?

Unfortunately, the data demonstrates that, despite the increasing use of advanced technologies to detect the presence of counterfeits infiltrating the supply chain, the steady supply of counterfeit products continues to skyrocket.

Why?

Because no improvements in DNA-based detection technology can change this simple mathematical equation:  When profits routinely exceed investment, there will be a steady supply of fake products.  Fakes require no research, development or marketing to succeed.  Rather, by passing off a fake product to consumers, a $10 investment can yield $100 in profit, with little or no likelihood of prosecution or penalty.  

This return on investment (ROI) exceeds that of trafficking in the narcotics trade, with less chance of being murdered by the competition or sentences that include decades in a federal penitentiary.

While advanced detection methods are part of the brand protection puzzle, international laws and norms clearly need to become increasingly effective, to deter and punish counterfeiting once it is discovered.

Counterfeit UL Stickers End in Conviction and Bankruptcy For GuildMaster

Example of a Counterfeit UL Sticker

Missouri-based furniture and home decor company GuildMaster was sentenced in federal court after pleading guilty to importing thousands of lamps marked with counterfeit "UL" (Underwriter Laboratories) certification mark stickers.

UL is an independent product safety certification organization accredited for safety testing by the federal Occupational Safety and Health Administration (OSHA).

If a product carries an authentic UL certification mark, it means UL found that representative product samples met UL's safety requirements. These requirements are primarily based on UL's own published standards for safety. According to the UL website, this type of mark is seen commonly on appliances and computer equipment, furnaces and heaters, fuses, electrical panel boards, smoke and carbon monoxide alarms, fire extinguishers and sprinkler systems, personal flotation devices, bullet resistant glass, and thousands of other products.

A counterfeit UL sticker has the potential to mislead consumers into believing an electrical item has met the UL's safety requirements, when it may not have.

GuildMaster's website proclaims that "it is every company's responsibility to operate in a manner that is respectful of people and the planet." The company further claims that it has an "open book management" philosophy, in which it encourages its employees to "think and act like owners."

Nonetheless, in December 2011, U.S. Customs and Border Protection officials reportedly discovered that thousands of lamps that were being imported into the U.S. from China by GuildMaster were emblazoned with counterfeit UL labels.

According to a press release issued by the U.S. Attorney's Office, GuildMaster, which was formerly a client of UL, stopped producing its own lamps in 2005. Since 2005, GuildMaster has purchased lamps manufactured in China and imported them into the United States under the GuildMaster label.

GuildMaster maintains that none of its agents or employees had personal knowledge that they violated U.S. laws by importing the lamps. However, GuildMaster acknowledges that the knowledge and actions of its subsdiary's employees and agents are fairly attributed to GuildMaster.

Before the federal seizures, GuildMaster admitted that it did not inspect lamps coming from China to ascertain the authenticity of the "UL" certification marks placed upon the lamps. GuildMaster acknowledges that had it inspected the lamps, its employees would likely have seen counterfeit and unauthorized UL marks.

The sentence imposed in federal court requires destruction of nearly two million dollars worth of the lamps, and 5 years of probation.

Following the indictment, GuildMaster had filed for Chapter 11 bankruptcy. It is unclear if the sentence imposed will affect the company's continued existence, as GuildMaster had recently filed a request to extend time to file its bankruptcy exit plan, citing the government's demands that the lamps be destroyed.

Microbreweries Increasingly Battle Over Beer Names as Trademarks

After a long lull following the Prohibition era during which mega-breweries dominated the American beer market for decades, local microbreweries have steadily grown in popularity recently, with thousands of newly operating breweries joining the ranks each year.

However, such microbreweries still only satisfy a modest portion of the American appetite for beer.  Consequently, thousands of struggling microbrewers are trying to capture this highly competitive segment of the aggregate marketplace.

The increasing pressure on this marketplace has made brand differentiation a key concern.  Some commentators have called this conundrum "standing out in a sea of beer."

Consequently, publicized legal conflicts over brands in the microbrewery marketplace have recently arisen.

 

For example, in April 2013, a Grand Rapids, Michigan-based brewery called Brewery Vivant sent a legal cease and desist letter to Tired Hands Brewing Company of Ardmore, Pennsylvania, demanding that the small brewery cease using the name "FARMHANDS" for one of its Belgian ales.

"FARMHAND" is an as-yet unregistered trademark claimed by Brewery Vivant for a French farmhouse-style ale that is very popular in Michigan.  Brewery Vivant owners claims to have experienced an instance of actual confusion at a trade show, leading to the need for legal threats.

The FARMHAND brand has been used by a British Columbia-based microbrewer called Driftwood Brewery, leading to the possibility of international trademark issues down the line.

But the conflict over FARMHAND is not an isolated incident.

In June 2013, West Sixth Brewing of Kentucky and Magic Hat Brewing of Vermont settled a trademark-related dispute that quickly got ugly when it was described as "frivolous," and which escalated to a full-blown federal lawsuit until it was settled by the parties after mediation.

Similarly, Sierra Nevada Brewing Company had a trademark dispute over the "NARWHAL" trademark when it launched "Narwhal Imperial Stout," a move that the Narwhal Brewery apparently opposed.

And when Mother Earth Brewing Co., a craft beer maker in Vista, California, discovered another company in North Carolina with virtually the same name, Mother Earth Brewing Co., LLC, it was forced into filing trademark litigation in the Trademark Office.

Those with long ties to the microbrewery industry lament the need for ongoing legal conflicts over trademarks, citing comparisons to the less collegial tech industry.

According to one attorney who specializes in the alcohol and brewery industries, the craft beer industry "has become swollen," leading to a need for market participants to be more proactive with a coherent and aggressive branding and trademark strategy.