[ncdnhc-discuss] Taubmansucks.com litigation

[James Love]

Public Citizen's Paul Alan Levy is handling the appeal on this case.  Jamie

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April 16 2002 - USA Manatt Phelps & Phillips 
Protest site allowed to stay online during hearing 
World eBusiness Law Report  

The US Court of Appeals for the Sixth Circuit has suspended an order
that forced several related protest sites to be removed from the Web,
while it considers the associated First Amendment issues. A fan website,
which was the subject of the original order, remains offline however.

Henry Mishkoff decided to create a fan site in honour of a shopping
mall, The Shops at Willow Bend, to be constructed by the Taubman
Company. He registered 'ShopsAtWillowBend.com', claiming to be
"motivated solely by the desire to be of service to the community". The
unofficial site included information about the mall and links to stores. 

Taubman did not share Mishkoff's enthusiasm for his fan site. It filed a
complaint with a Michigan court, claiming trademark and cybersquatting
violations, and requested that the site be removed. 

Mishkoff then registered several 'sucks' domain names, including
'TaubmanSucks.com'. Mishkoff wrote to Taubman's lawyers saying that if
necessary, he would use the domains to post details of the litigation
and expose the mall "to public ridicule". 

Taubman secured a preliminary injunction requiring Mishkoff to take down
the fan site until the case was heard. The court determined that Taubman
was likely to succeed at trial and would be irreparably harmed by the
site. Mishkoff complied with the court order to take down the original
site, but then posted all of the protest sites. These sites contain
noncommercial criticism of Taubman, its lawyers and the lawsuit. 

Emboldened by victory, Taubman asked the court to expand the order that
forced Mishkoff to take down the fan site to include the noncommercial,
protest sites. Taubman argued that because Mishkoff was already deemed a
trademark infringer, he was required to keep a "safe distance" from all
of Taubman's marks. 

Seeing a clear First Amendment freedom of speech issue before the court,
Public Citizen got involved and filed a brief urging the court to
consider the First Amendment implications of expanding the original
injunction. However, the court not only barred Mishkoff from using the
'sucks' domain names, but further ordered him to completely remove the
sites from the Web. 

Public Citizen's Paul Alan Levy stepped in to handle the appeal. The US
court of appeals suspended the lower court's expanded order, citing case
law that appears to support Mishkoff's First Amendment argument.
'Taubmansucks.com' will remain online while the case continues, but the
fan site stays off for now. 

Holly Pranger, Manatt Phelps & Phillips, Los Angeles
 
 


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James Love, mailto:james.love at cptech.org, http://www.cptech.org
voice +1.202.387.8030, mobile +1.202.361.3040, fax +1.202.234.5176