First Amendment protects anti-abortion activist's satirical use of NAACP name, 4th Circuit rules
A federal appeals court has ruled that the National Association for the Advancement of Colored People can’t use trademark law to stop an anti-abortion activist from substituting “abortion” for “advancement” in the NAACP name.
The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals ruled Tuesday on behalf of the Radiance Foundation, which published an online article criticizing the civil rights group’s alleged stance on abortion. The article, written by Radiance Foundation founder Ryan Bomberger, was called “NAACP: National Association for the Abortion of Colored People.” (The NAACP says it is actually neutral on abortion.) The Virginian-Pilot Online has a report.
The Radiance Foundation sought a declaratory judgment after the NAACP sent a cease and desist letter, and the NAACP countersued for trademark infringement.
The appeals court opinion (PDF) said the Lanham Act bars people from misappropriating trademarks to the detriment of consumers or the marks themselves. “However, the act’s reach is not unlimited,” the court said. “To find Lanham Act violations under these facts risks a different form of infringement — that of Radiance’s expressive right to comment on social issues under the First Amendment.”
A district court had found infringement partly because a Google search for “NAACP” led users to the Radiance article. The lower court said that satisfied a requirement that the use of the mark was “in connection” with the NAACP’s goods and services. The appeals court disagreed, saying the “in connection with” requirement typically referred to the alleged infringer’s goods and services, not the trademark holder’s.
The lower court said the NAACP name was also used in connection with Radiance’s own information services, and in connection with its own quest for donations. The 4th Circuit rejected that conclusion, saying the article was just “one piece” of the Radiance website’s content that included a “donate” button.
The district court had also found consumer confusion because of phone calls to the NAACP by people irate over the abortion issue. The appeals court, however, said that, at best, the calls demonstrated confusion as to the NAACP’s policy positions rather than any good or service.
“ ‘Actual confusion’ as to a non-profit’s mission, tenets, and beliefs is commonplace, but that does not transform the Lanham Act into an instrument for chilling or silencing the speech of those who disagree with or misunderstand a mark holder’s positions or views,” the 4th Circuit said.
Also publishing reports on the decision are LifeNews.com, one of three websites that ran the NAACP article; the Electronic Frontier Foundation, which submitted an amicus brief with the ACLU of VIrginia supporting Radiance; and UCLA law professor Eugene Volokh of the Volokh Conspiracy, who worked on the EFF brief.
