New free speech victory for gripe site operator

[Milton Mueller]

From: Paul Levy <plevy at citizen.org>

I am pleased to announce that one more court has ruled that the
trademark laws allow a consumer critic to erect a web site that
criticizes a company and uses the company's trademark as its domain
name, without even inclusion of the word "sucks" or some other negative
word in the domain name.  Judge William Hayes of the US District Court
in San Diego dismissed the complaint of Bosley Medical Institute against
the web sites established by Michael Kremer at www.bosleymedical.com and
www.bosleymedicalviolations.com on two separate and independent grounds
- the web sites were completely noncommercial, and nobody who actually
reached the web sites could possibly be confused about whether Bosley
was their sponsor.  An important development on the "non-commercial use"
issue was that the court found non-commercial use even though, on one of
his web sites, Kremer provided a link to the Google archive of the
alt.baldspot newsgroup, on which Google accepts advertising.

We have been warning that the law protecting non-commercial web sites
of this sort against meritless trademark claims has become so clear that
trademark owners risk being held liable for attorney fees when they file
such suits.  In this case, Bosley had already lost in the UDRP, which
found it to be a case of cyberbullying, but nevertheless took Kremer to
court, and dragged him through nearly three years of legal proceedings.
Moreover, this is a particularly venal plaintiff - we have checked
Public Citizen's pioneering "Questionable Doctors" database, which
allows consumers to check whether doctors were subjected to medical
board discipline in other states as well as their own -  and we have
found that there is only one doctor in the whole country who has been
subjected to discipline in more states that Larry Lee Bosley.
Consequently, we have decided that this is an excellent first case to
seek an award of attorney fees on behalf of a domain name defendant.


For Immediate Release:                                  Contact:
Paul Alan Levy (202) 588-1000