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The Radiance Foundation, Inc. v. National Association for the Advancement of Colored People

United States District Court, E.D. Virginia, Norfolk Division

December 11, 2013

THE RADIANCE FOUNDATION, INC. et al., Plaintiffs,
v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Defendant

For The Radiance Foundation, Inc., Ryan Bomberger, Plaintiffs: Charles Manley Allen, Jr., LEAD ATTORNEY, Goodman Allen & Filetti PLLC, Glen Allen, VA; William Francis Demarest, III, Goodman Allen & Filetti PLLC (Glen Allen), Glen Allen, VA.

For National Association for the Advancement of Colored People, Defendant: David Glenn Barger, LEAD ATTORNEY, Greenberg Traurig LLP, McLean, VA; Johnine Barnes, Steven John Wadyka, Jr, PRO HAC VICE, Greenberg Traurig LLP (DC-NA), Washington, DC.

For National Association for the Advancement of Colored People, Counter Claimant: David Glenn Barger, LEAD ATTORNEY, Greenberg Traurig LLP, McLean, VA; Johnine Barnes, Steven John Wadyka, Jr, PRO HAC VICE, Greenberg Traurig LLP (DC-NA), Washington, DC.

For Ryan Bomberger, The Radiance Foundation, Inc., Counter Defendants: Charles Manley Allen, Jr., LEAD ATTORNEY, Goodman Allen & Filetti PLLC, Glen Allen, VA; William Francis Demarest, III, Goodman Allen & Filetti PLLC (Glen Allen), Glen Allen, VA.

Page 672

MEMORANDUM ORDER

Raymond A. Jackson, United States District Judge.

Before the Court is Defendant National Association for the Advancement of Colored People's (" Defendant" ) Motion in Limine to Exclude Expert Report and Testimony of Tracy Tuten, Ph.D. (ECF No. 48) in the above-styled matter. Having carefully reviewed the parties' pleadings, this matter is now ripe for judicial decision. For the reasons stated herein, Defendant's Motion to Exclude is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff The Radiance Foundation, Inc. is a non-profit organization founded by Plaintiff Ryan Bomberger that educates the public about social issues from a Christian perspective. Defendant National Association for the Advancement of Colored People provides educational and outreach services to African-Americans. After Defendant's Senior Vice President publicly criticized Plaintiffs' comparison of abortion to slavery as a part of their pro-life campaign, Bomberger wrote two news articles critiquing Defendant's stance on abortion under the headline " National Association for the Abortion of Colored People." These articles were posted on Plaintiffs' websites toomanyaborted.com and theradiancefoundation.org as well as a third-party website lifenews.com. Bomberger published a third article on lifenews.com that included a graphical depiction of Defendant's Scales of Justice seal. Bomberger has used the NAACP acronym throughout his news articles and public speeches to refer to Defendant since June 2011.

On January 28, 2013, Defendant sent Plaintiffs a letter threatening to take legal action if Plaintiffs did not cease to use its federally registered trademarks " NAACP" and " National Association for the Advancement of Colored People" and its protected " Scales of Justice" seal and " Image Awards" phrase. On February 1, 2013, Plaintiffs filed a Complaint for Declaratory Relief, asserting that their use of Defendant's marks does not constitute infringement and is protected speech under the First Amendment. Defendant filed counterclaims for trademark infringement and trademark dilution in violation of the Lanham Act and Virginia law. On November 6, 2013, Defendant filed the instant Motion in Limine to Exclude Expert Report and Testimony of Tracy Tuten, Ph.D..

III. LEGAL STANDARD

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court's (" Supreme Court" ) established the standard for the

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admissibility of expert testimony pursuant to Federal Rule of Evidence 702. ...


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