Public Citizen wins nice victory in car dealer critic case [fs]

[Declan McCullagh <declan () well com>]

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Date: Mon, 29 Sep 2003 15:57:40 -0400
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: Encouraging IP lawyers to stop and think before they sue......

My colleague Amanda Frost has had a nice development recently in a case
filed in federal court in Alabama against a Tom Ballock, a consumer who
established a web site about a local car dealer.
http://www.crownpontiacnissan.com/

The dealer rushed into court and got a preliminary injunction against
Ballock, who defended himself pro se.  Amanda then got involved and
persuade the judge to lift the preliminary injunction.  After taking
Ballock's deposition, the plaintiff gave up and dismissed the suit.
There is an account of the progress of the litigation on Ballock's site:
 http://www.crownpontiacnissan.com/lawsuit.shtml#settlement_filed

Lat week, the judge granted our motion for an award of damages against
the preliminary injunction bond that was wrongfully issued against
Ballock.  The judge explained why the injunction should not have been
granted -- although Ballock uses the dealer's name in his domain name,
there is a very strong disclaimer of affiliation at the top of his site,
so nobody could be confused, and the site was completely noncommercial.
Consequently  and then gives Ballock $766.45 in out of pocket expenses,
$4000 in mental anguish damages, and $2000 for the injury to his free
speech rights.  (The judge was also quite complementary to Amanda,
making clear that Ballock's ultimate victory was due to his securing
"highly competent representation" after he received  the preliminary
injunction).

The case stands as yet another reminder to IP attorneys to stop and
think  before they bring questionable trademark claims against
individual dissenters in the hope that they can smash them before they
can get a lawyer.  Sometimes, even a win on a quick preliminary
injunction can come back to haunt their clients!


Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html
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