Jun 30, 2014

USPTO Cancels REDSKINS Marks But Anti-Christian Marks Remain

The United States Patent and Trademark Office’s recent cancellation of six REDSKINS trademarks highlights the USPTO’s broad obligation to deny registration to disparaging marks. See Amanda Blackhorse et. al. v. Pro-Football, Inc., Cancellation No. 92046185 (June 18, 2014). 
The USPTO has been aggressive in weeding out marks that offend left-wing piety. But it has permitted registration of many marks that illegally disparage Christians, e.g., by disfiguring the Cross or misusing the Lord's Name.
Legal Standard and Examples of USPTO Protection for Some Groups and Lack of Protection of Christians Symbols and Beliefs

15 U.S.C. §1052(a) requires the USPTO to deny registration to a trademark that disparages any persons, beliefs, or national symbols -- not just minority races or religions. The USPTO, thus, is obliged to protect Christian beliefs and symbols of Christianity from disparagement. The test for disparagement is broad. A mark disparages when it “dishonors by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust comparison.” Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 124 (D.D.C. 2003) Nevertheless, as set forth below, the USPTO has registered many marks that slight or more actively deprecate Christianity in violation of §1052(a) and the precedents that it has set in favor of other groups.

A) Christian Symbols Should be Protected to the Same Degree as Communists Symbols
USPTO: Don't Defile the Hammer and Sickle ...
In fulfilling its statutory duties, the USPTO has generally displayed great sensitivity to possible targets of offense. In an early example, the USPTO refused to register a disfigured hammer-and-sickle symbol with an X slashing it out, something like the design above, for the activities of an anti-communist society. The USPTO concluded that the disfigured symbol of communism brought contempt on the communist government of Russia.  In re Anti-Communist World Freedom Cong., Inc., 161 USPQ 304, 305 (TTAB 1969). This is one of the precedents most widely cited to establish the standards for refusing registration to disparaging trademarks.
... But Defiling a Cross is OK?
Given the standard set for what constitutes disparagement of a symbol, the USPTO has not shown the appropriate level of concern for Christian symbols. For example, in April, 2014, the USPTO registered a design featuring a disfigured Christian cross, Reg. 4521787. The registration was a trademark for the musical performances of a Christianity-mocking, death-metal band. While disparaging intent is not required to show disparagement, the overwhelming evidence of malice here is certainly prima facie evidence that the mark is disparaging. The disparaging mark is a design comprising a the word "POSSESSED" before an inverted liturgical cross, which is further surrounded by a demon's tail. I have modified the design mark, removing the disfigured cross, to avoid offense so that the inverted cross is replaced with a single white line in the place where the inverted Christian cross is in the original mark; the arms of the disfigured cross were in the original design placed about two-thirds of the way down. The arms of the cross have been removed. I have also edited out the end of the barbed demon's tail.

The USPTO's failure to protect Christians symbols and beliefs from disparagement can also be seen in its decision to register another mark with a mocking use of the Cross: WHOLLY WATER 100% H20 AND SPIRIT-FREE GUARANTEED TO HYDRATE BODY & SOUL, Reg. # 4318025. The mark includes the design furthest below, with a prominent latin cross in the place of the T in water, which I have isolated immediately below to avoid offense. 
The Cross, Registered by the USPTO in a Degrading Context
Plainly Disparaging and Registered by the USPTO
On what theory did the USPTO consider that a deliberately irreligious use of the Cross, treating it as an ornament for a pun on a Christian liturgical element, does not degrade or slight Christianity? Granted the mark does not disfigure the Cross, but it does place it in a degrading context.

Another example: Even before the Cross was established as a symbol of Christians faith, there was another symbol of Christian faith, which has been in continuous use until today -- the symbol of the fish or Ixthus. The Ixthus is an acronym, which according to the greek spelling, is used to proclaim that "Jesus Christ is God's Son and the Savior." 

An Ancient Christian Symbol ...
Those mocking Christian belief in creation sometimes display a disfigured version of the Ixthus with legs and the interior word "Darwin." Despite the clear intent to disparage Christian belief by disfiguring a Christian symbol, the USPTO granted trademark registration, Reg. # 2115112, to such a design. As with the REDSKINS trademarks, there is no question about the right of the registrant to use this mark and to mock Christian beliefs; the issue is whether such disparaging trademarks should be registered under law. It should not.  

Which Is Mocked in a USPTO Registered Trademark.
B) Christians Terms and Beliefs Should be Protected to the Same Extent as Muslim Terms and Beliefs

USPTO: Armenian "Altar" Wine Offends a Substantial Composite of Muslims 
The USPTO has established very strict standards to protect religious terms and related beliefs from disparagement. For example, the USPTO, sensitively and sua sponte, refused to register KHORAN for an Armenian wine ("khoran" means "altar" in Armenian) because a "substantial composite" of Muslims would find it "disparaging to themselves, their religion and their beliefs" given the Koran's ban on the consumption of alcohol. In re Lebanese Arak Corporation, 94 USPQ2d (TTAB 2009)(affirming). The USPTO decided that an Armenian-wine producer should not be able to trademark the Armenian word for altar to sell wine in the United States because, to most Americans, it will sound like a reference to the Muslim scriptures. The lack of an intent to disparage was held to be irrelevant.

But What About the Southern Baptists?
The USPTO, however, seems not to be concerned about registered marks that disparage the Christian scriptures, the Bible, in precisely parallel ways -- at least with respect to Christian groups like the Southern Baptists who maintain that the Bible prohibits drinking today. For example, the USPTO registered the BEVERAGE B_ _ _ E [ible], Reg. # 3803113 for bar services. This mark is used for a drinks menu at an elaborate bar. This mark obviously demeans the Bible by comparing it to a menu with a very extensive offering of liquor anyway. But it is especially demeaning to Christians believing in temperance, just as KHORAN wine would be for Muslims. Perhaps, the views of Southern Baptists that the Bible prohibits alcohol use are considered by the USPTO not to constitute a substantial composite of Christians, though this seems odd since the Southern Baptists are clearly a large enough group to be protected in their own right. (Southern Baptists are 7% versus Muslims who are 1% of the U.S. population.)

Again, even if a substantial composite of Christians didn't believe that the Bible prohibits alcohol use, the USPTO should still have protected the Bible from marks that disparage by "drawing a comparison with what is inferior, slights" see Harjo, 50 U.S.P.Q.2d at 1737 n.98. Comparing the Bible to a drink menu is certainly disparaging in that it compares the Word of God to something "inferior" and therefore "slights." The USPTO has also registered marks connecting the Bible with the human posterior and young female singers. See, the BUTT B_ B _ E [ible], Reg. # 4031195, for on-line fitness, and the CHICK SINGER B _ B _ E [ible], Reg. # 3835945, for coaching female singers. These are plainly offensive to a substantial composite of Christians at least to the same degree as the KHORAN mark that was rejected is offensive to Muslims. 

Additionally, as Muslims believe that liquor is prohibited, Christians believe that taking God's Name in vain is prohibited, but the USPTO has registered a number of trademarks that abuse God's Name: HOLY S P _ R _T [irit] for beer, Reg. # 4479519 SWEET J_ S _ S [esus], Reg. # 3963046 for beer and spirits, and J_ S _ S [esus] IN A GLASS, Reg. # 3834692, for drinking glasses (profane uses of Christ's name obscured). See also, the design on trademark,  IPA TRINITY BEER CO. PROVIDENCE, RI, Reg. # 3186153, which depicts the word TRINITY prominently immediately under the "seeing eye" symbol of God's providence on a beer label.

Apparently, while the USPTO is concerned that Muslims might regard an Armenian altar wine as offensive because of it similarity to the word for the Muslim scriptures, the U.S. does not think that Christians would find it offensive to find our Lord's name or the Holy Spirit or the Trinity used to promote liquor. This does not seem reasonable. 

With the same sensitivity to Muslims as it displayed in the KHORAN case, the USPTO refused to register STOP THE ISLAMISATION OF AMERICA for information services preventing terrorism. It found “[t]he admonition in the mark to STOP sets a negative tone and signals that Islamization is undesirable and is something that must be brought to an end in America.” This decision was recently affirmed by the Federal Circuit. See In re Geller, F.3d  (Fed. Cir. May 13, 2014)(affirming denial based in part on the negative essays about Islam on applicant's website which demonstrated religion disparaging meaning)

On the same principle, one wonders why the USPTO didn't stop "Obnoxious Media, LLC" from registering of NO J_ _ _ S [esus] REQUIRED, Reg. # 4399311, for entertainment services featuring religious commentary. One might have thought that the applicants' "obnoxious" name was a clue as to how they intended to use Christ's name and treat the Christian faith. But, unlike in the case of those trying to prevent terrorism, the USPTO didn't bother to go to the website where they would have found pictures of desecrated images of Jesus Christ and the registered trademark used to sell clothing depicting a defaced cross. Certainly, the registration that Jesus is not required "set[s] a negative tone" and to the same extent as the word "stop" [versus "roll back"] signals that the growth and energy of Christianity and American evangelization should be brought to an end. 

The USPTO needs to adopt the same protective attitude toward Christians that it has displayed for Communists, Muslims and Native Americans.

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