Another good decision on Internet "gripe sites"

[Dave Farber <dave () farber net>]

-----Original Message-----
From: Paul Levy <plevy () citizen org>
Date: Fri, 05 Mar 2004 12:17:36 
To:dave () farber net
Subject: Slight error in date of last email

I want to call your attention to another court decision that upholds the
right of a consumer to create a non-commercial web site criticizing a
company, using the company's name as the domain name.  Lucas Nursery and
Landscaping v. Grosse, - F.3d -, 2004 WL -, No. 02-1668 (6th Cir. March
5, 2004),
http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=04a0071p.06. 


This case involves Lucas Nursery, a landscaping company in the suburbs
of Detroit, Michigan, which apparently botched work done for Michelle
Gross - or at least that was her opinion.  But, when she established a
web site to tell her story, Lucas sued her under the Anticybersquatting
Consumer Protection Act ("ACPA").  She took the site down but Lucas
persisted, taking her gesture as a sign of weaknesses and hoping to get
some blood - or, perhaps, to send a message to other critics.  But the
trial judge decided she had not posted her web site with a bad faith
intent to profit, and the United States Court of Appeals for the Sixth
Circuit has now affirmed. 

The court began by going, one-by-one, through the factors set forth by
the ACPA, but then it took a step back and gently reprimanded itself for
potentially being too mechanical:  

        Although Grosse's actions would arguably satisfy three of the
four aforementioned factors, she does not fall within the factor that we
consider central to a finding of bad faith. She did not register
multiple web sites; she only registered one. Further, it is not clear to
this Court that the presence of simply one factor that indicates a bad
faith intent to profit, without more, can satisfy an imposition of
liability within the meaning of the ACPA. The role of the reviewing
court is not simply to add factors and place them in particular
categories, without making some sense of what motivates the conduct at
issue. The factors are given to courts as a guide, not as a substitute
for careful thinking about whether the conduct at issue is motivated by
a bad faith intent to profit. Perhaps most important to our conclusion
are, Grosse's actions, which seem to have been undertaken in the spirit
of informing fellow consumers about the practices of a landscaping
company that she believed had performed inferior work on her yard. One
of the ACPA's main objectives is the protection of consumers from slick
internet peddlers who trade on the names and reputations of established
brands. The practice of informing fellow consumers of one's experience
with a particular service provider is surely not inconsistent with this
ideal.

Hard to put it better than that.

Grosse was represented by Jeffrey Wilson, a lawyer in private practice
in Southfield, Michigan, with the firm of Raymond & Prokop

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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