Good new decision on Internet free speech

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <plevy () citizen org>
Date: August 24, 2005 3:34:12 PM EDT
To: dave () 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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