[IP] Good new decision on Internet free speech
Begin forwarded message:
From: Paul Levy <plevy@xxxxxxxxxxx>
Date: August 24, 2005 3:34:12 PM EDT
To: dave@xxxxxxxxxx
Subject: Good new decision on Internet free speech
I want to call your attention to a very important Internet free
speech decision, perhaps the most significant of our domain name
cases from the past several years. In Lamparello v. Falwell, the
United States Court of Appeals for the Fourth Circuit held today that
the use of the domain name www.fallwell.com for a web site devoted to
denouncing the views of Rev. Jerry Falwell about homosexuality
neither infringes Falwell's trademark in his name nor constitutes
"cybersquatting." The court chose not to address the issue of
whether the non-commercial character our client's web site was
sufficient to excuse it from the coverage of the trademark laws,
because it was so clear that his web site did not create any
likelihood of confusion about whether Falwell sponsored it. The
court ruled that, where the web site is clear about being adverse to
the interests of the trademark holder, the fact that the domain name
for the web site resembles the trademark is not a reason to find
infringement, because the domain name must be considered in the
context of the web site.
The decision is important for two other reasons. First, it is a
decision by the same court that ruled against the web site operator
in the "People Eating Tasty Animals" case, PETA v Doughney. There,
the operator of a web site at www.peta.org (now accessible at
www.mtd.com/tasty) was found guilty of both infringement and
cybersquatting. It has always been my feeling that the case turned
on the fact that Doughney was plainly trying to hit PETA up for a
payment for the domain name, but the case has been widely if
incorrectly cited in briefs as standing for the proposition that a
domain name in the form www.trademark.com was impermissible for a
gripe site. That the same court that issued PETA has now made clear
this construction of its opinion was erroneous - and Judge Michael, a
member of the panel in Falwell, was also one of the judges in PETA -
could well signal the end of the line for lawsuits of this kind.
Second, this opinion contains some welcome skepticism about the
doctrine of "initial interest confusion," a trademark law analysis
that some courts have deployed rather carelessly over the past
several years to find trademark infringement even though there was no
consumer confusion about whether a product or service was sponsored
by a trademark holder. Trademark law has always protected against
only a substantial likelihood of confusion by the reasonable
consumer, and not against "temporary confusion" or confusion caused
wholly by consumer carelessness. In some of the early Internet
infringement cases, there was some tendency to "baby" consumers by
assuming that Internet users are stupid and that domain names can
easily mislead them way from the web sites of trademark holders. By
holding that "initial interest confusion" is not present here, in
part because of flaws in the doctrine and in part because it does not
apply to non-commercial criticism anyway, the court has written a
decision that may play an important role in the development of
trademark law apart from the issue of domain names and the Internet.
The opinion is available on the our web site at http://
www.citizen.org/documents/LamparellovFalwellFourthCircuitDecision.pdf.
It will be posted on the Fourth Circuit's web site later today.
Our local counsel in the case was Ray Battocchi. of McLean,
Virginia. We are also grateful to Richard Ravin, a New Jersey lawyer
who was of counsel in the district court, to Rebecca Tushnet, Phil
Malone and Bruce Keller who led the preparation of an amicus brief
for a group of twelve law professors in the intellectual property
field, and to Rebecca Glenberg who wrote a separate amicus brief for
the ACLU and the ACLU-Virginia.
Here is our press statement:
PUBLIC CITIZEN PRESS RELEASE
Aug. 24, 2005
For Immediate Release:
Contact:
Valerie Collins (202) 588-7742
Paul Levy (202) 588-1000
Rev. Jerry Falwell Loses Bid to Shut Down Disapproving Web Site
Falwell Sued New York Man to Shut Down Web Site
Criticizing Stance on Homosexuality
WASHINGTON, D.C. - In a victory for free speech on the Internet, a
New York man ordered to transfer the domain name www.fallwell.com to
the Rev. Jerry Falwell will be allowed to keep the Web site, the
United States Court of Appeals for the Fourth Circuit has ruled.
Public Citizen attorney Paul Alan Levy represented the New York man,
Christopher Lamparello. Lamparello runs a Web site that criticizes
Falwell's views on homosexuality. Falwell sought to transfer the
domain name, and after a Uniform Domain-Name Dispute Resolution
Policy panel ruled in Falwell's favor, Lamparello sued in federal
court in Virginia to keep his domain name. Noting that for a period
of time, Lamparello's Web site had praised a book and linked to
Amazon.com where the book could be bought, a trial judge decided that
the site was sufficiently commercial to be subject to the trademark
laws and ruled in Falwell's favor. Lamparello appealed the decision,
and the case was argued in front of the United States Court of
Appeals for the Fourth Circuit in May.
Public Citizen, which has been a strong defender of First Amendment
rights on the Internet, argued that Lamparello's speech is
indisputably protected and not applicable to trademark laws because
the site features noncommercial speech. Levy also asserted that the
District Court's opinion should have been reversed because viewers of
the Web site were unlikely to be confused about whether Falwell
sponsors the Lamparello Web site.
"Lamparello's website looks nothing like Reverend Falwell's," the
court ruled today. "Lamparello clearly created his website intending
only to provide a forum to criticize ideas, not to steal customers."
"This is a victory for First Amendment rights on the Internet," said
Levy. "We are pleased that the court agreed that Mr. Lamparello has a
right to use Falwell's name when criticizing him, and has every right
to do so on the Internet."
The American Civil Liberties Union, the American Civil Liberties
Union of Virginia and Intellectual Property Law Faculty defended
Lamparello's Web site with "friend of the court" briefs. Local
counsel was Ray Battocchi of McLean, Va. The court's decision is
available at http://www.citizen.org/documents/
LamparellovFalwellFourthCircuitDecision.pdf.
###
Public Citizen is a national, nonprofit consumer advocacy
organization based in Washington, D.C. For more information, please
visit www.citizen.org.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
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