FC: Texas mall tries to close critical website with similar name

[Declan McCullagh <declan () well com>]

[The http://www.shopsatwillowbend.com/ site in question is now 
password-protected. The official mall site appears to be 
http://www.shopwillowbend.com/ As always, I invite Taubman (the mall owner, 
copied above) to reply. --Declan]

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Date: Wed, 14 Nov 2001 18:18:01 -0500
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: Another internet free speech case

I am writing to call your attention to a brief that Public Citizen just 
filed as a friend of the court in a case, now pending in federal court in 
Detroit.  The case involves Henry Mishkoff, a resident of Dallas, Texas, 
who created a web site describing a shopping mall called "Shops at Willow 
Bend" that had opened near his home in the Dallas suburb of Plano.  He 
named his web site, naturally enough, shopsatwillowbend.com.  His site was 
in operation for two years when suddenly the mall's developer, the Taubman 
Company, sent him a demand letter asking him to take down the site and hand 
over the domain name.  Mishkoff expressed a willingness to discuss this, 
but when they kept threatening to sue him, and then actually did sue him, 
he was so disgusted that he registered more domain names, such as 
taubman.com and shopsatwillowbendsucks.com.

Taubman deliberately sued him in Michigan, presumably in order to make it 
hard for Mishkoff to defend himself, even though the law is pretty clear 
that they have to go to Texas to file this case (unfortunately, being pro 
se, it did not occur to Mishkoff to move to dismiss on this ground until 
recently, after he got legal advice from me). Taubman got a preliminary 
injunction against the original site, and now it is asking the court to 
shut down the "sucks" site which  recounts, in a fashion both folksy and 
humorous at times, Mishkoff's travails as a pro se defendant in the legal 
system at the hands of an attack dog trademark firm.  The web site is good 
reading in that sense

We have just filed a brief as a friend of the court urging the judge both 
that the First Amendment protects Mishkoff's right to use Taubman's names 
to identify the subject of his criticism, and that any event Mishkoff's 
sucks site does not violate the trademark laws in any respect.  We have 
also agreed to represent Mishkoff in his appeal from the preliminary 
injunction.  This issue of the use of trademarks as part of the domain 
names for critical web sites has come up in a number of other case, and 
Public Citizen has represented several operators of "criticism" sites, many 
of which are featured on our web site at 
http://www.citizen.org/litigation/briefs/IntFreeSpch/index.cfm

The brief is posted on our web site at 
http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=6448.

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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