Jason Lee Van Dyke Applies for "Proud Boys" Trademark

Specimen from Proud Boys Trademark Application

Jason Lee Van Dyke Applies for "Proud Boys" Trademark

by Susan Basko, esq.

BIG Update!  April 8, 2018.  Jason Lee Van Dyke has sent in changes he would like published -- so I am going to put them below each paragraph, labeled "From JLVD," and highlight those in a soft blue tint.  That way, you can compare what I wrote and what he is saying, which seem to be clarifications.

April 8, 2018.  Jason Lee Van Dyke, a Texas lawyer who calls himself the Sgt. at Arms of the Proud Boys, is soon to get the registered trademark on the words "Proud Boys" under International Class 35, described on the application as "Association services, namely, organizing chapters of a fraternity and promoting the interests of the members thereof."  The application, filed August 9, 2017, was published for opposition on February 20, 2018. There is a 30 day opportunity to object.  The USPTO application page shows no oppositions, thus the mark is most likely going to be entered onto the principal register under the ownership of JLVD Holdings, LLC, of Crossroads, Texas.

From JLVD: This is false.  I am the Sergeant-at-Arms of the Dallas/Fort Worth chapter of the Proud Boys.  There is no Sergeant-at-Arms for the fraternity as a whole.

The Proud Boys is basically a group of white men that might be called KKK-Lite.  The Southern Poverty Law Center (SPLC) has labeled the Proud Boys a hate group, and you can read about that in detail at this LINK.  The last few paragraphs of the long SPLC write-up covers Mr. Van Dyke.

From JLVD: This is false.  The Proud Boys is a multi-racial organization with two criteria for membership:  (1)  The person must be biologically male; and (2) The person must believe that the West is the Best.  By this, the “West” refers to western culture generally while recognizing the contributions of a multitude of races to the West.  In fact, our bylaws explicitly prohibit membership by persons associated with white nationalism, white supremacy, or the alt-right.  This would naturally include the KKK. 

Note: Mr. Van Dyke has also applied for a trademark on "West is the Best." As of this date, that trademark application is on its Final Notice of rejection, based on technicality involving the specimen.

Jason Lee Van Dyke is notorious for several years ago posting shocking racist tweets on Twitter.  The tweets use the word "nigger," and show a photo of a noose, and make death threats.  Mr. Van Dyke says he was responding to harassment.  The tweets will not be shown here to avoid repeating that hate, but they can be easily found on the internet if anyone has a need to see them.

From JLVD: This is accurate except that I was not responding to harassment.  I was responding to an individual that had posted my social security number, and those of both my elderly parents, on Twitter while encouraging other users to rob us.  I have said repeatedly that I regret by choice of words, but I absolutely do not regret threatening that individual and I would do it again using different words. 

Tom Retzlaff, a notable pro se litigant from Arizona and Texas, filed a bar complaint against Jason Lee Van Dyke.   The Texas State Bar dismissed the complaint, and Mr. Retzlaff appealed that decision.  The appeal result found that complaint showed violations of several ethical rules and the matter was sent back to the State Bar for findings.

From JLVD: This is false.  The bar initially dismissed the complaint as an inquiry, which means that the complaint failed on its face to allege professional misconduct.  Mr. Retzlaff appealed to the Board of Disciplinary Appeals which found that, when considering the complaint and nothing else, it alleged a violation of the rules on its face.  The only effect of this ruling was to return the complaint to the State Bar for investigation.  The investigation is ongoing and no findings have been made one way or the other.

Meanwhile, Mr. Van Dyke had been offered and accepted a position with the Victoria County, Texas, Criminal District Attorney's Office on March 1, 2018, and the offer was rescinded on March 21, 2018.   Jason Lee Van Dyke believed that Mr. Retzlaff was behind the rescission of the offer. Jason Lee Van Dyke then sued Tom Retzlaff for defamation, asking for $10 million.  Mr. Retzlaff then filed with the court a settlement offer, demanding $75,000 from Mr. Van Dyke to settle the lawsuit, or stating he would take much more in an anti-SLAPP motion.  

From JLVD: This is false.  Mr. Retzlaff admitted in his bar complaint, dated December 20, 2017, that he was the person responsible for the rescission of the job offer.  This is how I obtained the legal basis to sue him over the rescission of that offer.  On or around March 27, 2018, he was also responsible for my termination from a different company due to his own postings online about the company.  He is being sued for that as well.  I didn’t sue him for $10 million: I sued for $100 million.  Mr. Retzlaff’s settlement offer has been received, and it has been rejected. 

 An anti-SLAPP is a motion allowed in some states, including Texas, aimed to end a lawsuit quickly when it has been brought for the purpose of silencing speech on a public topic. SLAPP stands for "Strategic Lawsuit Against Public Participation." An anti-SLAPP motion that is won requires the Court to award sanctions to the defendant/ motion plaintiff.  In that settlement offer, Mr. Retzlaff goes into a full-fledged rant about the inappropriateness of someone who belongs to the Proud Boys and who makes racist posts on Twitter thinking he can work for a District Attorney's Office.  If you have always wanted to read a court filing that includes the word "shithead," you might want to look this one up. I'd post it here, but I do not want to get too far off-track from the topic of this trademark application.

So, that is the lowdown on who JLVD and the Proud Boys are -- now back to this trademark application.  Below, you can see the category of the goods or service is International Class 35, described as "Association services, namely, organizing chapters of a fraternity and promoting the interests of the members thereof."

Okay, so Proud Boys is a fraternity.   

Proud Boys Trademark Application showing description of the service

Proud Boys Trademark application stating JLVD  Holdings as owner.

Jason Lee Van Dyke lists himself as the attorney of record as well as the correspondent on the file.

Proud Boys trademark application, showing Jason Lee Van Dyke as both the attorney and correspondent.

When applying for a trademark, one must include a "specimen," which is an example of the mark being used in commerce.  In this application, Mr. Van Dyke provided 3 specimens, shown below.

The first specimen is shown above.  It shows the words "Proud Boys," a clenched fist, and the word "Uhuru."  As far as I know, "Uhuru" means "Freedom" in an African language, and is a symbol of the African Nationalist movement.  Okay, whatever.

 This second specimen looks like a picture of a rooster wind vane.

This last specimen shows a t-shirt with the words "Proud Boys," with an American flag in the background.  By the way, this appears to be a "fake specimen," meaning a stock photo from a t-shirt printing company, not a photo of an actual real, existing t-shirt. However, since it is one of three specimens, its inauthenticity would probably not kill the application.

The big question is whether the USPTO will allow a group that is said to be a racist hate group to have a trademark on the name of the group.  There are two legal factors in this.  First, is that the Trademark Manual of Examining and Procedure, Section 1203.01, as well as Section 2(a) of the Trademark Act, 15 U.S.C. §1052(a), prohibits trademarks that are "scandalous or immoral." The second factor is that the goods or services themselves must be legal.  For example, marijuana is federally illegal, and so trademarks cannot be registered where the good, or product, is marijuana.  

The mark "Proud Boys" is not in itself "scandalous or immoral," for example, as a pornographic picture  or words would be.  But the connotations might be scandalous or immoral.  A 2005 application for a trademark on the "Southern White Knights of the Ku Klux Klan" was rejected by the trademark examiner on the Section 2a basis, as follows:

"Section 2(a) Refusal
Registration is refused because the proposed mark consists of or comprises immoral or scandalous matter.  Trademark Act Section 2(a), 15 U.S.C. §1052(a); TMEP §1203.01.  According to the attached evidence from the Internet, the proposed mark includes the wording KU KLUX KLAN and is thus scandalous because a majority of the public finds references to the KU KLUX KLAN offensive in light of their beliefs and historical behavior.

 To be considered “scandalous,” a mark must be “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation,” in the context of the marketplace as applied to goods or services described in the application.  In re Mavety Media Group Ltd., 33 F.3d 1367, 1371 , 31 USPQ2d 1923, 1925 (Fed. Cir. 1994); In re Wilcher Corp., 40 USPQ2d 1929, 1930 (TTAB 1996).  Scandalousness is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, … and in the context of contemporary attitudes.  Id.

 A mark that is deemed scandalous under Section 2(a) is not registrable on either the Principal or Supplemental Register.  TMEP §1203.01."

However, since then, the U.S. Supreme Court ruled in a case involving a rock group called the Slants that its name could be registered as a trademark, although the name was considered "disparaging" to Asian Americans.  However, that ruling was made under a different part of the Lanham Act, which forbids a trademark that brings disparagement upon any person, living or dead.  You can read about that case at this LINK, which includes the document of the ruling made the U.S. Supreme Court.  To me, it looks like this ruling does not affect the law that refuses trademarks that are scandalous or immoral.

"Proud Boys" does not have the history or notoriety of the Ku Klux Klan, so most likely the name itself would not be considered "scandalous or immoral."  A case could be made for that, however, based on information of the Southern Poverty Law Center site listings on both the Proud Boys and one of its subgroups called FOAK. 

Let's look at a few other groups that some might consider "scandalous," that have or are seeking to register trademarks on their names:

The OATH KEEPERS has a pending trademark application on these categories:

“Association services, namely, promoting the interests of current and formerly serving military, peace officers and first responders by advocating its members disobey any order that violates the Constitution of the United States; charitable services, namely, organizing volunteers to undertake charitable projects in the field of disaster response,” in class 35;

 “Training services in the field of disaster preparedness, civil defense operations and physical security,” in class 41.

The Southern Poverty Law Center also lists Oath Keepers as an extremist group, although the site gives no examples of any "hate" activities.  The Oath Keepers application was published for opposition on February 20, 2018, the same date as the publication on the Proud Boys application.

The BLACK PANTHER PARTY: Since 2012, the Dr. Huey P. Newton Foundation, Inc. has had a registered trademark on "The Black Panther Party" in these categories:

Educational services, namely, organizing and conducting educational youth conferences; museum curator services, namely, exhibiting to the public historical archives; developing tutorial and mentorship programs, namely, training youth in black history, conflict resolution and reading and writing; producing documentary films.

Books in the field of history, politics, art, philosophy, psychology, science and social commentary; Calendars; Graphic art reproductions; Newsletters in the field of history, politics, philosophy, psychology, science and social commentary; Newspapers; Pamphlets in the field of history, politics, philosophy, psychology, science and social commentary; Paper bags; Photographs; Posters; Stationery.

NATION OF ISLAM: In 2010, Muhammad's Holy Temple of Islam on Stony Island Avenue in Chicago, Illinois, applied for a trademark on the words "Nation of Islam" as "religious instruction services."  The Trademark Examiner refused the application as being "merely descriptive," meaning the words "nation" is equivalent to "group of people" and "Islam" is a religion, so the trademark is merely describing the service being provided and does not have any secondary meaning.

However, the Trademark Examiner also found that the trademark "Nation of Islam" (NOI) had "acquired distinctiveness" over 5 years in continuous use, and offered that the trademark could be registered by the group if they responded within 6 months stating their acceptance and acknowledging that the trademark had been in use for 5 years.  The Attorney of Record never replied to the USPTO, and the application was considered Abandoned and Dead.   It seems odd to me that the trademark was not accepted by the NOI group on the basis of acquired distinctiveness. That Maryam Mosque on Stony Island Avenue is now considered the headquarters of the Nation of Islam and could rightly lay claim to the trademark.  The failure to respond within 6 months could have been an oversight or misunderstanding of trademark process.

The Southern Poverty Law Center considers Nation of Islam  an "extremist group." Despite the group's history associated with anti-White racism, the Trademark Examiner did not raise an objection of the trademark being "scandalous or immoral." 

WHAT WILL HAPPEN TO THE PROUD BOYS TRADEMARK APPLICATION?  So far, it looks like it will be granted. The Trademark Examiner has not made a finding of the trademark being "scandalous or immoral," nor has there been an investigation as to whether the activities of the group are considered illegal.  

However, as they say, it's not over till the fat lady sings, so let's keep an eye out to see what happens.

This could happen.