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

[Mike]

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.

Eff Alcu Amicus Brief Radiance v Naacp (PDF)
Eff Alcu Amicus Brief Radiance v Naacp (Text)

Originally Published: Wed, 15 Oct 2014 19:41:15 GMT
source