we're here on a singular question whether or not the patent and trademark office can ignore the factual record to establish that a trademark is disparaging correct if that was the meaning taken by a substantial composite of the american muslim population or on the other side of that coin if it was the substantial composite of the consumers who took in that trademark that the mark doesn't impose oppose everything that it's islamic but rather imposes opposes something different islamization that's certainly true and that is part of our argument an american freedom defense initiative that and what's interesting that article refers to a specific ad that was run in the detroit area with the smart transit system the six circuit way way way with which  misses it says in the article deller said she began that campaign in response to by said inviting people to convert to islam isn't this one by definition all things  to islam not to islam as a sion to convert to islam that is correct and your agree that islam is by definition of all things islam if that is correct as far as it goes but what that adds relates to that one sentence out of context doesn't mean anything the specific ad it relates to was an ad that dealt with the fact that young women who sought to weave islam were not be adherents enough were subject to abuse and honor killings that was the specific purpose of that ad but that ad for me florida inviting people to convert as well you know the response by her her advertisement campaign it's but that wasn't the message that was simply one of the motivating factors that developed the ad campaign the question is not the motivating factor the question is what does the ad campaign respond to not convert none of the ads none of the work by the applicants opposes conversion to islam what it did in this case the ad campaign that began in miami applicants could have run the transit ads but it was prevented from running on the basis that it was about political is want it was a political statement why but let's get back to the street protest that you're supposed to be applying here because that that six circuit was considering for totally different legal point what we're talking about here is whether or not under this two part test the general public would have a perception of the use of the term that that that is is one that could be disparaging to a large popular group of a population now you rely on a definition of the term that comes from academics or or elite religious leaders that's not the general public that's not them who are supposed to be measuring this against our weight well let me correct that slightly and i think the government actually agrees with us on this the question is not what the general public understands the question is what does a substantial composite of the affected group understand that term to mean and this especially comes into play because we have two dictionary definition one all things islamic which by the way occurs nowhere in the world so it's certainly not in the record no one has ever used that in discourse the only way to use is exactly the way my clients have used it so the substantial composite is of american muslims they are the affected group according to this pattern trademark office but what do they say there's no evidence from the patent trademark office what they say but if we turn to the congressional record that has been provided as part of the record where we do have muslims testifying and not simply as experts and scholars they certainly were there for that reason but they specifically said zene or i will run turkish american said i'm here both as a scholar but also to tell you about my childhood moving from turkey to this country and how important was this was her term the difference between is one versus islamis is the ideology that drives islam sation advocated by islam ist that's what all of that testimony goes to gina braun muslim american turkish scholar but a muslim american professor mogahed an iranian professor from george washington university began his discussion again in the record by saying i want to first tell you about my personal bias as a muslim and he goes  the problems in the muslim world and then he says the one way we in the muslim community in the muslim world can get to a more open and democratic society is to confront this problem of came along and ran an ad to stop the as late the mammas nation of america using my clients well go then i might have a trademark violation clamp supposing somebody came along really that which they oppose your position what they always have a first amendment right there yes i would suggest that they probably would and i'd have to see the context of the actual ad of the statement but my view would be yes if page twenty five of the  loyal patriotic american and want to change the law in the constitution family law supposing they want to specific subset of that they want to ban to force could somebody suppose they wanted to amend the u should islamisation is a very clear agenda set out again in the record to great detail islamisation is not simply an aspect for example many muslim process it's discussed by the scholar who's now a full professor a crutch a university on the whole process islamization in pakistan by general hoc part of the record it's a process of islamization discussed by miss peron and by the project on terrorism it's part of the same record i'm just trying to remember the correct name and it's also very much a part of the document that was put into the record to show exactly how muslims understand that term they don't necessarily agree and i would suggest most muslims don't agree especially in this country but if there was a article puzzled agree what to islamization in the words the point of the entire record in the congressional record the point of the entire factual record here is that muslims have asked muslims have made the statement that we need to make this distinction that you keep you keep you throughout your brief and here in your argument you have collapsed the test the first prong of the test ask what the general public would understand the term to me right and that's the first place the people then they go to the second song and they actually went to the second song and you know it being fairly liberal with with your argument by analyzing both terms and it's at that point they look to whether or not they are great great a population of the affected group would be would realize or feel that it was disparaging in connection with the product offered so you're referring to islamization and you want to to offer in connection with efforts to stop terrorism so isn't the fact that you are equating at least a large portion of the islamic population even if you say they are a bad portion of the islamic population with terrorism anough to to to mean that the board's decision was not an unreasonable one ok there's two questions there so let me try to get to the first one the standard is what is the meaning of the term without reference to a particular group whether we call that the general public there's only one understanding of the term that the patent trademark there the court has said this court and also in in reap boulevard entertainment the court the district court in the harjo matter have said when you have these two dictionary definitions we can't help the next quote part of the layer of the analysis if you go to the affected group to understand how a substantial composite of that group would understand that's why we continue to come back to the the record that this is an area where hundreds and thousands of muslim americans read their material about what islamisation is granite the only ones who seem to use the term are professionals and is constitutional abuses of this country by simply describing the process and saying that's something we oppose we would suggest can't be disparaging to disparage is to lower in rank by every definition i'm not lowering in rank if i i assume that's part of the vast majority that are late to the raza brotherhood the essay suggest asking for the mosque relist so what you're suggesting is that if it is a mosque as a reading list of books that by definition if somebody reads a book about all say i read a book about soviet military doctrine does that make me a communist no and that's not what the article suggests the article missed an enormous number of factors funding connections between the mom and the muslim brotherhood but i know many of the old reading list including reading this but that isn't a singular factor no one would suggest it is that would be seem singular to me when it when the article lists funding associations that's what the article on ten forty three discusses only one factor of several includes the reading list but that is also a wee jim approach to understanding what connections that might happen when we come to the question of the mosque and the opposition which the government makes a big deal out of the fact is that of all the mosque in the world of all the a statement of fact that my clients take but they didn't oppose all mosques what i said your honor was there only two mosques in the entire united states that my client has taken a public position to host a public position opposing in the sense of building a new mosque as opposed to two expressing views about the activities of current not that that's a that's a fine distinction you're making a statement about most mosques as a factual statement being aligned in some way with the muslims you can say most narcissistic vast majority of seems to me that majority again this isn't me speaking i'm speaking on behalf of my client but even the vast majority as a statement of fact is simply a position taken by my client regarding impure go at that instant she seen before it but what the article does say very careful is  mosque then you need to find the empirical evidence that in fact it is part of the islamization agenda that was the point of the article and that's the point of the facts she doesn't say in the article that just because they're muslims we oppose them and in fact if you go to the article on the ground zero mosque the article in which it mentions the fact that president obama had come out publicly in support of the ground zero mosque in that particular advertisement and we cite two it's a great detail in the opening brief my client states expressed with that we're not talking about opposing mosque or religion it's not a religious issue there are hundreds of mosques throughout new york and those are not our concern that was her statement in the article cited by the government the record is replete my client is as as testifying as a george washington fessor whose roots were back in iran each and every one of these statements and if you look through the lexis nexis sure grade that we conducted of every single to the muslims that live in that community because they desire well let me let me ask you something as a practical matter i mean if whether or not you could survive a defamation claim if a mosque or someone attacked you for use the term in connection with the finding of terrorism that's a very different thing than asking for the a prime minister of the united states government for use of your phrasing so why is it that you feel the need to trademark that term mean you think someone else is going to use it well first of all michael like any trademark app can my client has invested an enormous amount of time and energy  developing that mark she uses it in context of advertisements across the country she puts on conferences she's a published author books a blog that's why we view that mark has meaning and under section the trademark act she has a right to trademark to have that registered but with you're proposing to register it solely for services related is it understands terroris is intended to attach as a mark and that in itself i think it adds weight to the position of the office in terms of the breadth of what's being proposed to trademark x and separate from the aspect of exclusive use onces a registered trademark presumably the exclusive use of the statement of a concept that might take many forms besides jurors so where does where does that leave you in this rejection we have a narrow proposed usage for this mark a very broadly stated mark and i've been listening to this is interesting how ugly terrorism has been mentioned but not as the use to which this mark is proposed to be honor if i understand the comment in the question correctly the broadest use or definition of islamization which only found in dictionaries which talks about all things islamic is not at issue here because the other definition is the only definition the one about a legal political and military approach to taking a political society which is based upon representative government and converting it to a theocracy in a word and where those i take us as far as the proposed limitation to terrorists all of the standing origin planted in your question all of the record all of the record points to the fact that islam is a nation ultimately includes terrorism whether we look at the wall review articles or the statements by mr idris or right they're worried that it was disparaging to american muslims when in fact we see that it isn't so what would be the importance of applying for the mark the importance of applying for the mark would be to protect that expression turf i think that we're arguing on here in that he's conceded the primary definitions if the primary definition of islam is right that refers all things of islam american muslims would find that disparaging so let me just address his definition of islamization we would point out that the record is not nearly as clearly defined in separating islamization from the religion of islam and in fact if you the second thing is that these articles some of them acknowledge that americans don't make the americans make the association of islam islam with his mom and that even american muslims don't appreciate the distinction that these policy articles and testimony before congress are trying to make a point to the record a for sixty nine to show that even many muslims don't differentiate between islam as muslim and one of the articles points out and i believe he talked about this in his argument that it's really an aspirational goal to make this kind of thing ssion to advance the policy goals that these people who are testifying in writing are trying to advance and saying that they would have to wait until they until they taught everybody what this term means and the fact that it doesn't have a broader meaning before they can get a mark the application has to be examined on the before the office and the record before the office on this particular application shows that at this time it's really an aspirational goal of these particular authors that are cited in the record and if you go on the the application itself  it this is a basically is trying to be services are to prevent and understand terrorism and what the office looked at in addition to the dictionary was it looked at how the applicants used the mark and the way they used it as he pointed out in some of the questions earlier don't make the clear distinction between islam the religion and islamization the socially the political legal doctrine the th filed there they talked about a feel object of political agenda they talked about it being the religious law because of islam or talk about the fact that i asked opposing tells about it mrs gaylor began her using the mark are another piece of evidence that shows exactly what the mark means because these articles did not show or draw a clear distinction between the religion of islam and this political legal doctrine that they say they've spoken of the articles talk about there's one in particular that says it's a mosque manifesto when it reaches the investigation of all mosques building plans and the opening quote to that article as we've been reminded time after time after grisly islamic terrorist plots have been exposed there is always a loss and we think that shows that they're not making the clear distinction in the use of them are between the the definition they're now trying to hang their hat on  there's another one about the title of the nine eleven mosques piece charade and it says it notes that muslims are already conducting daily prayers on the site well that's not a clear distinction between just political legal doctrine and the religion of islam either so while these policy professionals may be advocating for a narrower definition that simply isn't the case as to how they use it now and it isn't the case that the public perceives it that way now so again i hate to get this take it back to the legal framework that we're supposed to be operating in so if it's your view that what the board did was at the second prong that harold announces the board's looked not just to the pros use for the mark but the current use to inform how someone might understand the use in the context of the goods and services that were to ship because we believe the board looked at both because it looked both at the services that were described in the application which were using it to prevent and understand terrorism and also how the exemplars that were in the record of how the mark was actually used by the applicants use the particular mark so we think the board looked at both of those things right and but you think that there's a disconnect between those two things between at least the description that that was given to the board and the way it actually seems to be playing out in practice if what you mean by description you mean by the definition of islamization yes i believe there was a disconnect because the evidence that the present for their narrower definitions of islamization their own evidence does not support that clear distinction between the two ok and i did and there were no declarations from academics or otherwise or or religious individuals who said that that the current use that look to any of these eggs employers and set these exemplars tie exactly to the definition that i'm offering you mean from the perspective of the applicant yes absent or not put in declarations that would tie those two things together at the i guess i'm not understanding your own risk other words the elite the academics the religious elite that that said that this is how we understand the use of the term none of them went in and said and these exemplars are being true to this distinction that we're drawing oh no that's right your honor that's the there is no evidence of that in the record what he's trying to do is is essentially take you know the aspirational definitions in those things that he put in the record and use that to inform what he thinks the proper definition of islamization and so the board obligation is not simply just to look at a term and see how someone who would approach something in a pr way and i assume the office as an answer to that yes i mean those are first of all the dictionary definitions i think are very important because they show that there are two accepted definitions of the term second of all  way the applicants use that themselves i think is probably more important than what these individuals who are in academia might want the term to mean because that shows what the applicants are actually advocating as the meaning of the term even if they're speaking  they're simply speaking as two individuals who are either practicing or not practicing their religion but have some relation to how does that weigh in the context everyone in the united states well we think that of a few anecdotal examples was probably not enough to overcome the fact that several established dictionaries have the two definitions it was only a couple  least ok but we would say that the fact that that you know a few of these people have said these things to try to make up for that they understand that a particular way is not enough to overcome the evidence what the dictionary say there are two well known and definitions of the mark and to overcome the fact that the evidence actually use it in a sense that doesn't adhere to that distinction we understand the only evidence that we have that muslim americans as the affected group of any muslim americans much less a substantial compo which is the war have any problem with this is from a single dictionary definition and it's an inference about that dictionary definition but we have to the result we have to go to the affected group and we've shown muslims yes are they scholars but they don't lose their quality as muslim americans because they're scholars we have one review articles from law students and  in them every tenth article and we show in their every article identifies islamization in exactly the way the applicants do the only now evidence we're talking about are the articles that might speak about my client's efforts the article that your honor mentioned about the ad campaign was in a newspaper article was an article that  actually the patent trademark office cited it was introduced into the record by the examining attorney not by us we didn't put into the record any of my clients blog articles all of that evidence was put in by the  responded to the trademark and a few boards opinion by saying that's not true these articles do not say that my client opposes off things is fun but for goodness sakes has nothing to do with that and indeed the article and it's a page fifteen of our opening brief one of the main oracles that was actually written by my client not the washington times news article but the actual words of my clients this is my client speaking america if we're going to use a one instrument that's what they're already of which are backed by the muslim brotherhood again another issue that is an empirical statement it's not a question of whether or not she opposes those mosque it's simply empirical statement and the evidence would suggest because the vast majority of lost are literally title to the north american islamic trust which is organization the ultimate question is if we're going to allow a once instrument to be used by the patent trademark office to say notwithstanding that every muslim is in has said that this is a distinction it's important to make for our behalf that you can read these articles to innuendo to establish what is the burden the burden is the patent trademark office must bring a substantial evidence because my time is well past i appreciate the court's indulgence with this court said and in remembering media in a similar type of case where there's a lot of nks going on behind the scenes even if the members of this panel personally find that the mark blacktail disc gusting we scandalous the legal conclusion that a trademark comprises scandalous matter must arrive from the perspective of the substantial composite there is no substantial composite by the patent trademark office no matter how one wants to read those three articles there is not a single muslim in the world who has stood up and said stopping islamization disparages us or holds us in disrepute the only evidence in the record and it's a monopoly is that mother good mother good muslim americans who have spoken to this point have all said you're not doing us any favors by wiping this distinction into a kind of vague in racial remark this is an important distinction to make because it allows us as muslims who identify