Fwd: [IP] Good new decision on Internet free speech

[Milton Mueller]

> Begin forwarded message:
>
> From: Paul Levy <plevy at citizen.org>
> Date: August 24, 2005 3:34:12 PM EDT
> To: dave at farber.net
> 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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