“National Association For The Abortion of Colored People” Trademark Case Heads To Fourth Circuit

naacpWe previously reported on the dispute between the National Association for the Advancement of Colored People (NAACP) and the conservative activist Ryan Bomberger. Bomberger had repeatedly referred to the NAACP in online articles not by its actual name, but by the name “National Association for the Abortion of Colored People.” Bomberger characterized this alternative moniker as a parodic critique of what he perceived to be the NAACP’s pro-choice politics.  The NAACP, on the other hand, saw Bomberger’s articles as likely to cause confusion among consumers. With the parties at an impasse, in 2013
Bomberger filed a declaratory judgment action in the Eastern District of Virginia.

After early summary judgment for Bomberger was denied, a bench trial was held in December 2013.  In April 2014, Judge Raymond Jackson issued a 52-page opinion in favor of the NAACP.  Judge Jackson rejected Bomberger’s First Amendment arguments and agreed with the NAACP that consumers were more likely to be confused by the similar names than to recognize Bomberger’s use of a similar name as a parody.  The Court also found that the NAACP had proven its claim of dilution by tarnishment. Judge Jackson enjoined Bomberger from further use of the name “National Association for the Abortion of Colored People” to describe the NAACP.  On June 10, 2014, the Court issued an amended order clarifying that the injunction applied to both Bomberger individually and to his non-profit, the Radiance Foundation.

On June 12, 2014, Bomberger filed a notice of appeal to the Fourth Circuit.  Likely issues on appeal will include Judge Jackson’s relatively cursory discussion of First Amendment considerations, his holding that Bomberger’s political speech was a use “in commerce,” and the highly controversial finding that Bomberger’s use of the name “National Association for the Abortion of Colored People” was not a recognizable as a parody because it did not “poke fun, imitate or mock the NAACP.”

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