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Jerry Falwell critic can keep domain name, appeals court says

Jerry Falwell critic can keep domain name, appeals court says
Jerry Falwell critic can keep domain name, appeals court says




-------- Original Message --------
Subject: New Internet free speech ruling
Date: Wed, 24 Aug 2005 15:11:11 -0400
From: Paul Levy  
To:  

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.

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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