Anti-abortion activist Ryan Bomberger of The Radiance Foundation thought he had an unassailable First Amendment defense. After all, his use of the phrase “National Association for the Abortion of Colored People,” in order to criticize the National Association for the Advancement of Colored People (NAACP), was in the context an on-line political dispute over abortion. So when the NAACP threatened suit, Bomberger beat them to the punch with a quick-strike declaratory judgment action filed in the Eastern District of Virginia, followed shortly thereafter by a pre-discovery summary judgment motion. However, U.S. District Judge Raymond A. Jackson recently denied the motion and ordered that the case should proceed.
The National Association for the Abortion of Colored People
The dispute stems from Bomberger’s “TooManyAborted.com” campaign against “abortion and its disproportionate impact on African Americans.” In 2011, Bomberger had 50 billboards erected in Georgia that analogized abortion to slavery, and declared: “The 13th Amendment Freed Us. Abortion Enslaves Us.” NAACP spokespersons bristled at the analogy and criticized Bomberger’s interpretation of history.
Bomberger shot back, posting an article on his website entitled “NAACP: National Association for the Abortion of Colored People,” which included phrases like: “The NAACP, whose moniker would better be described as the National Association for the Abortion of Colored People, publicly proclaimed their support for abortion when. . .” Almost two years later, Bomberger was continuing to post articles containing his intentionally incorrect moniker forthe NAACP, sometimes featuring the real NAACP logo as an illustration. He also composed acerbic blog entries decrying “groups such as the NAACP (which has become the National Association for the Abortion of Colored People). . .” In January 2013, the NAACP demanded through its attorneys that Bomberger cease using the name, prompting Bomberger to bring suit.
The Parties’ Summary Judgment Arguments
In their summary judgment filings, the parties disputed three main points. First, Bomberger argued that his use of the NAACP mark was not “in commerce” (as required by 15 U.S.C. § 1114) because, rather than being connected to the sale of goods or services, it was pure political speech. The NAACP countered that Bomberger in fact uses his website to solicit donations, and that use “in commerce” has been interpreted to include non-profit organizations.
Second, Bomberger argued that his use of the NAACP mark was an obvious nominative fair use (a defense to trademark dilution provided by 15 U.S.C. § 1125) because his articles merely referred to the NAACP mark as a reference point for talking about NAACP activities. In other words, he only invoked the NAACP mark in order to parody, criticize and comment on its owner. The NAACP, on the other hand, asserted that parody is an issue of fact not suitable for summary judgment and that, in any event, this defense cannot overcome the tarnishment Bomberger has caused to its reputation.
Third, Bomberger argued that there can be no likelihood of confusion because it was “virtually impossible” that anyone would reasonably think that the NAACP stood for, or had changed its name to, the “National Association for the Abortion of Colored People.” The NAACP responded that it was simply too early in the case to determine whether are not there is a likelihood of confusion.
On October 15, 2013, Judge Jackson issued a one-page opinion in which he declined to address any of the substantive issues, but did agree with the NAACP that there were still genuine issues of material fact in dispute that precluded summary judgment. The Court ordered the parties engage in a settlement conference with a Magistrate. Barring any settlement, the parties will proceed to discovery.