A U.S. district court judge sided with the National Association for the Advancement of Colored People (NAACP) last week in a trademark case against an African-American pro-life leader who parodied the group’s name.
Ryan Bomberger, the founder of the pro-life group Radiance Foundation, wrote an article on LifeNews.com in January 2013 entitled “NAACP: National Association for the Abortion of Colored People,” which pointed out the organization’s ongoing support for pro-abortion groups. The cause is personal to Bomberger, who was conceived through rape.
The NAACP wrote a letter to Bomberger and LifeNews accusing them of copyright infringement and insisting they remove the words from online forums within seven days. Bomberger responded by filing a lawsuit, claiming it was his First Amendment right to use parody to criticize the NAACP. But the NAACP counter-sued, claiming the phrase was not parody, but an infringement on its registered trademark name.
On April 24, Judge Raymond Jackson agreed with the NAACP. According to the ruling, copyright infringement occurs if a trademark imitation is used in connection with “the sale, offering for sale, distribution, or advertising of any goods or services” and/or if the imitation could cause confusion or deceive the public. Two of the three websites featuring the article included a donation button for Radiance on the same page. All three sites linked to the Radiance Foundation’s billboard campaign, which also asks for donations to sponsor a billboard.
In addition, the NAACP said the article confused is constituents about the group’s real name. Jackson agreed that the article did not provide the organization’s real name, giving the reader “no suggestion or signal” that the phrase is indeed a parody. The judge ruled that the Radiance Foundation “may not present such critiques in a manner that is likely to confuse the public regarding whether certain trademarks espousing a pro-abortion viewpoint are authorized or sponsored by the NAACP.”
But Bomberger said he doubted his article confused anyone. “We've been using this [parody] for years,” he told me via email, “and no one has ever been confused, written to us, [or] called us thinking that we were somehow the NAA**.” Since the ruling was announced, Bomberger is careful not to speak or write about the group by name.
Not only does the permanent injunction require Bomberger to remove the online article, it gave him 15 days to destroy anything else—including signs, social media posts, research, and computer memory—that references the NAACP or its logo. In addition, Bomberger may never again use the parodied phrase “National Association for the Abortion of Colored People” because it confuses people about the real organization. Bomberger’s attorneys plan to ask the judge for clarification of the overly-broad ruling.
“The ruling is a frightening attack on the First Amendment,” Bomberger said. “In essence, the ruling prevents us from criticizing, from commenting upon, or even satirizing an organization’s documented actions in a news commentary.”
Although the NAACP claims it doesn’t take an “official” position on the abortion debate, Bomberger noted in another online post that Planned Parenthood co-sponsors the NAACP’s annual conventions. A recent YouTube video features NAACP national board member Rev. William Barber II winning Planned Parenthood’s “Care. No matter what.” award at its 2014 national gala.
Many organizations use parodies to criticize their opponents or to make a point. Political parody ads are common during campaigns, running on television and radio, and political cartoon parodies are published daily by hundreds of magazines and newspapers. Saturday Night Live (SNL) is famous for employing the tactic in many fake advertising skits.
The only difference between Radiance’s use of parody and SNL’s, Bomberger said, is that he’s not making money from it. He’s also using truth to make a point. “SNL’s and political cartoons' parodies are typically rife with hyperbole,” he said. “Our use is irrefutably factual.”