Saturday night at the 1st Way Life Center annual dinner at the McHenry Country Club, Radiance Foundation speaker Ryan Scott Bomberger revealed that he and his foundation had lost the first round of its First Amendment case with the NAACP.
The oldest black advancement organization sued the group and Bomberger personally, claiming that the use of the term “National Association for the Abortion of Colored People” was an infringement of the copyright law.
After a three-day trial in Norfolk, Virginia, Federal Judge Raymond Jackson decided for the NAACP despite a defense put on by the Alliance Defending Freedom.
Jackson was appointed by President Bill Clinton.
It’s such an absurd opinion, I’d expect an appeal.
A perspective of the court fight from The Radiance Foundation’s point of view can be found here. Included is evidence of the pro-abortion stance of the NAACP.
The crowd pretty much filled the banquet room.
Bomberger brought his “adoption, not abortion” message to McHenry County as part of the outreach effort of his and his wife’s foundation.
The speaker himself was adopted by a couple with “three home grown” kids. There were thirteen children in the family when all of the adoptions were complete.
Bomberger’s mother was placed in an orphanage at age five while her parents were having marital troubles.
She vowed that she would do her best to make sure that other children were not placed in orphanages.
Bomberger and his wife have adopted as well as “home grown” children.
Here is the basis for the case, as outlined by the Judge:
After NAACP executives publicly criticized Plaintiffs’ anti-abortion billboards in 2010 and 2011, Bomberger wrote three news articles critiquing the NAACP’s position on abortion, employing the phrase “National Association for the Abortion of Colored People.”[FN1]
These articles were posted on Radiance’s websites TooManyAborted.com and TheRadianceFoundation.org as well as on a third party websiteLifeNcws.com.
The first article, published June 21, 2011 on TooManyAborted.com, had a headline that read “NAACP: National Association for the Abortion of Colored People” and discussed Defendant’s endorsement of the 2004 March for Women’s Lives.
The second article from July 6, 2011, published on LifeNews.com, included a graphic of the Scales of Justice Seal and stated that National Association for the Abortion of Colored People would be a fitting moniker for the NAACP.
The third article, published on TheRadianceFoundation.org, LifeNews.com and TooManyAborted.com in January of 2013, discussed the NAACP’s Annual Image Awards. [FN2]
This article employed the phrase “National Association for the Abortion of Colored People”throughout its text and headline.
Additionally, Bomberger made a speech in December of2012, during which he stated, “Groups such as the NAACP (which has become The National Association for the Abortion of Colored People) and the Congressional Black Caucus aid and abet this mass destruction of beautiful potential in the black community,” a statement that was later posted on TooManyAborted.com.
The NAACP became aware of Radiance’s use of its marks through a Google Alert that identified the third article on LifeNews.com as a “hit” when a search for “NAACP” was performed. On January 28,2013, theNAACP sent Plaintiffs a letterthreatening to take legal action if Radiance and Bomberger did not cease to use the NAACP Marks. Compl., Ex. 7.
On February 1,2013, Radiance filed a Complaint for declaratory judgment, asserting that its use of the NAACP Marks does not constitute infringement, tarnishment or dilution and is protected speech under the First Amendment.
On April 8, 2013, the NAACP filed counterclaims for trademark infringement and federal unfair competition under the Lanham Act, trademark dilution under theTrademark Dilution Revision Act, and Virginia common law trade mark infringement and unfair competition.
On April2 9, 2013, Plaintiffs filed a motion for summary judgment simultaneously with their Answer to the counterclaims, which this Court denied.
On November 11,2013, after the completion of discovery, the NAACP filed a motion for summary judgment, which was also denied.
This Court also granted-in-part and denied-in-part the motion in limine filed by the NAACP on November 6, 2013, limiting the testimony of Plaintiffs’ expert Tracy Tuten, Ph.D. to opinions regarding general consumer survey principles and methodologies.
Lastly, this Court denied the NAACP’s request for a directed verdict in its favor as to its counterclaims.
The bench trial commenced on December 10,2013 and ended on December 12, 2013.
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FN1 – Initially, California NAACP Chapter President Alice Huffman called Radiance’s billboards “horribly racist.” Trial Transcript 107:16-108:2 (hereinafter”Tr.”). Then, in June of 2011, the Huffington Post published an article about Radiance’s billboards in Georgia, quoting the NAACP’s Washington Bureau Director and Senior Vice President for Advocacy and Policy Hilary Shelton as criticizing the campaign for comparing abortion to slavery. Tr. at 108:6-109:10.
FN2 2 – This third article, first published in January 2013, is the article upon which the NAACP bases its counterclaims. See infra Part I, Section C, point 14.
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The decision goes on for fifty-two pages, a bit too long to reproduce here.
There are ones on
- trademark infringement
- in connection with the offering for sale of services
- likelihood of consumer confusion
- First Amendment considerations
- trademark dilution
I found this Footnote 29 of interest in :
Although Defendant did not explicitly address this distinction at trial, the Court recognizes that Defendants argument regarding infringement oft he “National Association for the Advancement of Colored People” mark is based on the alleged use of “National Association for the Abortion of Colored People,” a colorable imitation of Defendant’s organization name. The term “colorable imitation” includes any mark which so resembles a registered mark ast o be likely to cause confusion, mistake or to deceive.
There was also this testimony quoted in a section entitled, “Likelihood of consumer confusion:”
OUESTION: Are you aware of any damage or harm to the NAACP’s reputation caused by that Google alert or by the web page that line is taken to by clicking on the heading of that alert?
[WINGERTER]:Iknow that it caused confusion among some members
QUESTION: And can you explain for the Court what the nature of the confusion was that you became aware of?
[WINGERTER]- Well, my office receives a number of phone calls. Because we are the communications department, we have a lot of public folks calling in asking us- the nice ones were asking us why we were supporting abortion of people of color, and then there were some angrier ones as well.
QUESTION: And what were the angrier ones saying?
[WINGERTER]:Just talking about, you know, used to be a supporter oft he NAACP.
You had a proud history during the civil rights movement and I can’t believe that you are supporting the genocide of black babies.
As mentioned previously, the Court found for the NAACP.
In another order, the Judge issued
“a permanent injunction against Plaintiffs and their use of the ‘National Association for the Abortion of Colored People’ phrase in a manner likely to cause confusion or dilution regarding Defendant and its marks.”