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David Kravets - May 14, 2014 8:31 pm UTC

A federal appeals court is letting stand a decision denying a trademark to a website's banner because it could be perceived as disparaging to Muslims.

The US Court of Appeals for the Federal Circuit upheld a 2011 decision from the US Patent and Trademark Office against "Stop Islamization of America"—a decision raising constitutional concerns.

It wasn't the first time trademark regulators enforced a little-referenced section of law that allowed them to refuse issuing a trademark if it disparages the "living or dead" or institutions, beliefs, or national symbols or places them in "contempt, or disrepute."

However, the disparagement clause is rarely enforced. One of the last times was in 2010, when Lebanese Arak Corp. sought to register KHORAN as a trademark for alcoholic beverages.

The appeals court noted Tuesday that comments and essays on the sioanline.com site, and others operated by activist Pam Geller, were against mosques in the United States and supported people to drop their Muslim faith. (The site no longer loads.)

Geller, who made headlines for opposing a mosque near the World Trade Center, called the ruling a "complete whitewash." But the appeals court said there was "substantial evidence" (PDF) that Geller advocated the "suppression of the Islamic faith."

Eugene Volokh, a University of California, Los Angeles legal scholar, said his "tentative" view of the matter was that it was unconstitutional to exclude trademarks to brands that disparage.

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 effect of the ruling, however, comes with an ironic twist.

Volokh said the decision denies "the special legal protections offered to registered trademarks, such as the greater ease in stopping third parties from using one’s registered trademark in commercial contexts."

Geller said she intends to appeal the "unconstitutional" decision.

She said the decision underscores "how the federal government, and especially the courts, continue to bend over backwards to kowtow and placate Muslim sensitivities," and added that the trademark was denied because US authorities are "afraid of the response from Islamic supremacists."

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