Any organization that takes a stand on controversial issues can expect some criticism. And this criticism might involve someone commenting on the organization’s trademarked name or logo. For example, opponents of the NRA have suggested that “NRA Stands for Next Rifle Assault.” Critics of the ACLU have mocked it as the “Anti-Christian Lawyers Union.” The former CEO of the RIAA was fond of deriding EFF as the “Everything for Free Foundation.” Whether you think these parodies are brilliant or lame, there should be no question that they are fully protected by the First Amendment.
Unfortunately, a recent federal court decision from Virginia would allow trademarks to trump speech. 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.
Whatever one’s views on the parties involved, this ruling must not stand. As one wise judge observed, trademark law “regulates only economic, not ideological or political, competition . . . ‘Competition in the marketplace of ideas’ is precisely what the First Amendment is designed to protect.” In context, it is absolutely clear that the blog post involved the latter kind of “competition.” Its fierce criticism obviously was not endorsed by the NAACP and no one bought a product or service based on any confusion. You might think Radiance’s blog post was trite and misguided, but that doesn’t make it trademark infringement. Indeed, on the court’s reasoning, many folks who have “used” a corporation’s name or logo when criticizing its conduct (consider examples like this, this, this, and this) could be held liable for trademark infringement.
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.
Our brief in this case was prepared by the First Amendment Amicus Brief Clinic at UCLA School of Law. We thank Professor Eugene Volokh and his students for their excellent work.
