EFF To NAACP: Trademark Isn't For Censoring Your Critics

from the abort!--abort! dept

It's amazing how often trademark claims are used simply as a tool for censoring critics. A legal framework that is supposed to be about protecting consumers has been twisted into a strong-arm thug. That said, most times the plaintiffs in these cases at least make a show of pretending that they aren't simply trying to suppress critical speech -- even if the courts frequently see right through those attempts and opt to protect free speech. That doesn't appear to be the case in one federal court in Virginia, which has failed to protect the mocking speech of conservative group Radiance Foundation in a blog post criticizing the NAACP.

In that case, Radiance Foundation v. NAACP, the fight was over a blog post that criticized the NAACP. The Radiance Foundation is a conservative non-profit that advocates for what it perceives to be appropriate family values. In a blog post titled “NAACP: National Association for the Abortion of Colored People,” Radiance claimed that the NAACP embraces “all things liberal, most things socialistic, and nothing pro-life.”

The NAACP responded with a letter to Radiance threatening a lawsuit if it did not cease “using” the NAACP’s trademark. Radiance called on the courts for protection, asking for a declaration the blog post was protected speech. After a bench trial, Judge Raymond Jackson ruled against Radiance, finding that the post infringed the NAACP’s trademark and giving little credence to Radiance’s First Amendment claim.
I'm not entirely certain where the misunderstanding on the judge's part is here, but it's been well-established that the First Amendment, and criticism in particular, trumps trademark law. The Radiance Foundation's speech, while wholly obnoxious, is and ought to be protected. As a group that relies on the criticism of well-established powers to advance its agenda, I would think the NAACP would want to be especially careful not to erode the power of free speech in the land it hopes to change. Attempting to apply trademark law to political speech instead of simply economic speech, meaning advertising, is a dangerous step.

The EFF in particular appears eager to get involved in the case.
Today EFF, together with the ACLU of Virginia, filed an amicus brief in the appeal of this ruling. We are supporting Radiance’s appeal not because we agree with its message, but because a decision holding it liable for trademark infringement threatens a huge range of expression. Our brief explains that Judge Jackson’s decision misreads both trademark law and the First Amendment. There are many cases holding that use of a trademark in speech commenting on or criticizing the trademark owner is not infringement. Moreover, the First Amendment provides an independent reason for dismissing this trademark claim. We hope the Fourth Circuit agrees and protects the right to mention or mock a trademark, just as it protects the right to mock a trademark owner.
It's the right decision and a great place to take a stand, because it highlights the ideal: the protection of free speech, even if it is speech with which one disagrees.

Filed Under: criticism, free speech, trademark
Companies: eff, naacp


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Dan T., 15 Oct 2014 @ 12:52pm

    This sort of reminds me of the case of the person using "People Eating Tasty Animals" as the title of a PETA parody, which led to one of the earliest domain name disputes as this was up on the address peta.org, which the guy had registered before the real organization could.

    reply to this | link to this | view in chronology ]

  • icon
    wereisjessicahyde (profile), 15 Oct 2014 @ 1:32pm

    We are supposed to eat the cows. They would be everywhere if we didn't. In the library, in the swimming pool.. everywhere.

    reply to this | link to this | view in chronology ]

  • identicon
    Andyroo, 15 Oct 2014 @ 1:38pm

    Resolving probems caused by Conservative lies.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Oct 2014 @ 1:54pm

    NAACP: National Association for the Abortion of Colored People

    What better way for an out-of-touch liberal organization to celebrate itself than in the land of make believe? The NAACP’s 44th Annual Image Awards honor black imagery churned out by often racist, anti-Christian, perpetually sexist, violent and pornographic Hollywood. Just skim the list of the majority of nominees and one is left with an overwhelming feeling: emptiness.

    Django Unchained, with its graphic violence and 100 plus uses of the racially denigrating epithet, “nigger”, gets praise and nominations from the NAACP. “Lincoln”, a powerful film of historical substance, completely eliminates the most potent influence in Lincoln’s ideology and evolution on slavery—Frederick Douglass. There’s no protest from the NAACP, just a nomination.

    The nation’s oldest civil rights organization revels in a distorted reflection of who black Americans are, the struggles faced and the real world around us. Though they will dress up their liberal causes in bright lights, filtered lenses and entertaining performances, the NAACP Image Awards worship a false image.

    The NAACP’s selective, and often feigned, outrage on a myriad of issues is befitting of a multiple personality disorder, with its stronger personality being one that embraces all things liberal, most things socialistic, and nothing pro-life. They’ll beat the drums of economic, social and environmental “justice” while over 360,000 black babies, annually, never get a chance at one of the few Constitutional rights that actually exist—the right to Life.

    At a time when 72.3% of black children are born into homes without fathers and (in some places like Philadelphia) 50% of viable black pregnancies end in abortion one would think protecting future generations would become a national emergency for this historic organization. Single female-led homes are the norm in the black community. Children who grow up in these homes are 5 times more likely to live in poverty than those in two-parent married homes. Yet, these issues are non-existent on the organization’s website. And all the NAACP can do in regards to marriage is push gay marriage—hardly the solution to crumbling, impoverished families in our inner-cities. What about equality for these beautiful children living without the economic, educational and emotional security of both a mother and a father?

    The NAACP would rather sleep with Planned Parenthood, the urban staple and instigator of sexual irresponsibility, regardless of what people say. The affair has been going on for decades. The NAACP, despite denials, has publicly supported Planned Parenthood numerous times (here, here and here). It’s fought to prevent the abortion chain from being defunded while simultaneously fighting to ensure a massive influx of funding for its beloved ally (and annual convention sponsor) through Obamacare.

    In fact, both organizations are part of the nation’s largest coalition of “civil rights” groups, The Leadership Conference. It was co-founded by famed civil rights figure, A. Philip Randolph, who was the President of the Brotherhood of Sleeping Car Porters. He also happened to shill for Planned Parenthood back in 40s. Today, the NAACP, Planned Parenthood and a who’s who among pro-abortion groups are part of this “civil rights” collective. (The chair of The Leadership Conference just happens to be Judith Lichtman, the President of the rabidly pro-abortion National Partnership for Women and Families.)

    TooManyAborted.com - an initiative of The Radiance Foundation Planned Parenthood, gay marriage, HIV/AIDS initiatives, and demonizing the GOP are far more important to the National Association for the Abortion of Colored People than the devastating reality that black babies are aborted at staggering levels. Black babies are aborted 6 times more frequently (in NYC) than white babies: 1,448 are aborted for every 1,000 that are born alive as compared to 244 white babies aborted for every 1,000 born alive (all losses are a tragedy).

    No outreach. No outcry. No outrage.

    The only racial profiling the NAACP supports is the vilification of any black public figure or organization that is conservative and the targeting of unborn black children for death via abortion.

    The National Association for the Abortion of Colored People has no moral ground to stand upon, just quick sand oozing with the blood of those most discriminated against. The NAACP’s covert and overt support of Planned Parenthood negates any other human rights they purport to defend.

    If they can’t show any concern for the most basic civil right stripped away before birth, how can they convince the American public that they’re dedicated to rights post-birth? Why should anyone care about those black lives that the NAACP is so willing to throw away in exchange for political prominence?

    It’s not “rights” the NAACP is pursuing, but the Right (Senator Tim Scott, Judge Janice Rogers Brown, Allen West, The Radiance Foundation) in a venomous campaign to alter history to suit their allegiance to liberalism. Mainstream media has no spine or is complicit in the NAACP’s cause-du-jour. Whether it’s “dirty coal”, anti-charter school teachers’ unions, legalizing pot, or faux voting suppression crimes, the real crime is that news outlets never scrutinize the organization for its false claims, outrageous policies and destructive actions.

    And all the while, poverty, unemployment, poor educational outcomes, fatherlessness, STD and abortion rates remain exponentially high in the black community. As our TooManyAborted.com initiative has shown, today’s NAACP is a tragic example of civil rights gone wrong.

    But on stage in Tinsel Town, all is shiny and in perfect condition. All blemishes are hidden, each word controlled by pre-approved scripts and camera angles show only pre-determined perspectives. Perhaps they should take the show on the road, let’s say a few miles south in LA to Compton. The NAACP could let America see how much it’s truly done for urban America.

    But that wouldn’t be good for their image.

    ---------------
    Note that I don't agree with here, for example, I've never seen Django Unchained so can't say whether or not it really hurts black people and as a general policy I don't regard media violence as harmful, but this information needs to be made available. Also, here a lot of links in the article and I left so out and there images that cannot be post he, go to the Internet Archive for full article.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Oct 2014 @ 5:13pm

      Re: NAACP: National Association for the Abortion of Colored People

      TL:DR - Racism is not dead, all heil ignorant biased rhetoric.

      reply to this | link to this | view in chronology ]

    • identicon
      Ed, 16 Oct 2014 @ 10:58pm

      Re: NAACP: National Association for the Abortion of Colored People

      There is a dirty little secret out there about baby's born to women who claim they do not know who the father actually may be... Can anyone cite a statistic for any other racial group that even comes close to fatherless children. It is not that these women do not know, but rather that the violence against women, against young girls is in fact because members of their own families bring this shame upon generation after generation. Men who are a young girls uncle, a step father or even their own older brothers are impregnating these women.

      DNA Testing of all children born form this point forward would prove this dirty secret, and at the same time help to stop violence against girls and women in the only community in American that self reports to not knowing two-thirds of it's actually born children's fathers.

      reply to this | link to this | view in chronology ]

      • identicon
        Case, 17 Oct 2014 @ 4:54am

        Re: Re: NAACP: National Association for the Abortion of Colored People

        Absence of evidence proves that THEY are keeping it secret -- why are racist nutters always so predictable?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Oct 2014 @ 5:23am

        Re: Re: NAACP: National Association for the Abortion of Colored People

        "Men who are a young girls uncle, a step father or even their own older brothers are impregnating these women."

        What group are you talking about?
        You might have left out a few possibilities; gang members, clergy, police.

        reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 17 Oct 2014 @ 9:09am

        Re: Re: NAACP: National Association for the Abortion of Colored People

        The connection between children without an active father is not to race, but to economic status.

        reply to this | link to this | view in chronology ]

  • icon
    Christopher (profile), 15 Oct 2014 @ 2:52pm

    Shame on the NAACP

    Shame, shame, shame.

    Full disclosure: I think the lifeworks article is trite and stupid, but if this is a trademark violation, then any use of a trademark in criticism is a violation.

    This is one of the clearest, most obvious examples of protected free speech I have ever seen, the judge is out to lunch, and the NAACP should be ashamed of itself.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Oct 2014 @ 2:55pm

    Wouldn't this be a conflict of interest
    http://articles.dailypress.com/1997-11-24/news/9711250355_1_lawyer-discipline-federal-judge-virginia -general-district-court

    the article is from 1997 but , should it be relevant?

    magine the conversations about law that could take place over the holidays when U.S. District Judge Raymond A. Jackson gathers with other family members.

    His wife, Gwendolyn Jones Jackson, is a judge in Virginia General District Court's civil division in Norfolk. His sister-in-law, Elaine R. Jones, directs the NAACP's Legal Defense and Educational Fund. One of his brothers is a magistrate in the Chesapeake courts.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Oct 2014 @ 3:06pm

    Finally, an example I can point to when the religious nutjobs accuse the ACLU of not supporting conservatives/christians/etc

    reply to this | link to this | view in chronology ]

  • identicon
    Brad Merriman, 16 Oct 2014 @ 12:24pm

    What are the chances

    What are the chances a black guy appointed by Clinton would rule against the NAACP? He probably knows it will be overturned on appeal so why not.

    reply to this | link to this | view in chronology ]

  • identicon
    Michael G.Gallagher, 16 Oct 2014 @ 5:53pm

    EFF vs. NAACP

    NAACP=NATIONAL ASSOCIATION FOR THE ADVANCEMENT AND CONTINUATION OF POVERTY.

    SO SUE ME!!!!!!

    MICHAEL G. GALLAGHER
    SONGBUK-GU, SOLSAENGRO,
    JEUNGNEUNG-DONG 125, 1206 POONGLIM APTS
    SEOUL SOUTH KOREA, 136-775

    reply to this | link to this | view in chronology ]

  • identicon
    Donate to EFF, 16 Oct 2014 @ 10:48pm

    Now.

    reply to this | link to this | view in chronology ]

  • icon
    mermaldad (profile), 17 Oct 2014 @ 6:45pm

    Obnoxious?

    The Radiance Foundation's speech, while wholly obnoxious[...]


    While I agree with the OP about the inappropriateness of using trademark law to stifle speech, I have to say that the word "obnoxious" falls short of the mark here. Obnoxious was your little brother on a long car trip when you were ten. How about "reprehensible"?

    reply to this | link to this | view in chronology ]

  • identicon
    Robert, 28 Oct 2014 @ 9:25pm

    I can't imagine why....

    I can't imagine why Judge Raymond Jackson would make such an obviously incorrect ruling. He looks like a smart man:

    http://i.imgur.com/h5dBxQi.jpg

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.