Federal Court of Appeals Blocks Use of Trademark for Censorship

Today, in an important First Amendment decision, the Fourth Circuit Court of Appeals blocked an attempt by the NAACP to use trademark as a tool to censor unwanted online criticism—a result we had urged in an amicus brief filed with the court back in October. The Fourth Circuit overruled a federal district court in Virginia, which had previously ruled that the Radiance Foundation’s use of the moniker “NAACP” infringed on the organization’s trademark.

The case, Radiance Foundation v. NAACP, arose out of a Radiance blog post criticizing the NAACP’s stance on abortion. The Radiance Foundation is a conservative non-profit that advocates for what it perceives to be appropriate family values. The blog post, entitled “NAACP: National Association for the Abortion of Colored People,” claimed that the NAACP embraces “all things liberal, most things socialistic, and nothing pro-life.”

In an attempt to get the post taken down, the NAACP sent Radiance a cease-and-desist letter, threatening to sue Radiance for trademark infringement if the organization did not stop “using” the NAACP’s trademark. After Radiance sought protection from the courts, the federal district court ruled in favor of the NAACP, finding that Radiance’s post infringed on NAACP’s trademark, despite the First Amendment.

Radiance appealed the judge’s decision. EFF and the ACLU of Virginia filed a joint amicus brief in support of Radiance—not because we agreed with Radiance’s message, but because the lower court’s decision holding it liable for trademark infringement threatened a huge range of expression. As we explained in our brief, the lower court’s decision misread both trademark law and the First Amendment. Fierce criticism is not trademark infringement.

The Fourth Circuit agreed with us in its unanimous and strongly-worded opinion. The court recognized that trademark protection “comes at a potential cost to free expression” and found that trademark law should be read narrowly in cases involving non-commercial speech. The court held that the lower court’s decision had extended the Lanham Act—the primary federal trademark statute—far beyond the purposes it was intended to serve. As the court stated, “To find Lanham Act violations under these facts risks a different form of infringement — that of Radiance’s expressive right to comment on social issues under the First Amendment.” As the court further noted:

The most scathing speech and the most disputable commentary are also the ones most likely to draw their intended targets’ ire and thereby attract Lanham Act litigation. It is for this reason that law does not leave such speech without protection.

This is the second victory for free speech this week. Yesterday, the Ninth Circuit Court of Appeals blocked the use of copyright for censorship in Google v. Garcia. 

Thanks again to Professor Eugene Volokh and the First Amendment Clinic at UCLA School of Law for their excellent work on our amicus brief, which was cited by the Fourth Circuit in its opinion.

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