FC: Federal appeals court lets Texas mail critic keep his domains

[Declan McCullagh <declan () well com>]

Some back messages:
http://www.politechbot.com/cgi-bin/politech.cgi?name=Mishkoff

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Date: Fri, 07 Feb 2003 13:23:05 -0500
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: Big win for free speech on the Internet

I am pleased to be able to report that, in a decision released today,
the United States Court of Appeals for the Sixth Circuit has reversed
the two preliminary injunctions that had been issued against the
maintenance of the web sites at www.shopsatwillowbend,com and
www.taubmansucks.com.  The decision contains some ringing language
about the importance of free speech oin the Internet and the important
of domain names as a way to call attention to non-confusing and
non-commercial web sites.   A copy of our press release follows; it can
also be viewed on our web site at
http://www.citizen.org/pressroom/release.cfm?ID=1326

The American Civil Liberties Union filed a brief as amicus curiae in
support of our decision on appeal.

For Immediate Release:                                  Contact:
Paul Alan Levy (202) 588-1000
Feb. 7,
2003                                                            Shannon
Little (202) 588-7742

Appeals Court Upholds Right of Online Critic to Use Shopping Mall's
Name in Domain Name

Dallas Web Designer Did Not Confuse Internet Users, Infringe on
Trademark in Fan Site, Gripe Sites

        WASHINGTON, D.C. - In a ringing affirmation of free speech
rights on the Internet, a federal appeals court has upheld the right of
a Dallas man to use the name of a local shopping mall as the domain name
for a Web site singing the praises of that mall, as well as a second Web
site denouncing the mall's owner for suing him under the federal
trademark laws.

        Computer consultant Henry Mishkoff has been involved in a
dispute with the nationwide shopping mall developer Taubman Company,
which was building a mall called The Shops at Willow Bend, in Plano,
Texas, near his Dallas home. Mishkoff originally built a "fan site"
praising the mall, but after Taubman claimed his site violated its
trademark and demanded it be taken down, he developed a site criticizing
the company.

In the fall of 2001, the Michigan district court ordered Mishkoff to
remove both of his sites from the Web, taking a dangerous step toward
restricting non-commercial speech on the Internet. The appeals court
suspended the order against the gripe site in March while it considered
the First Amendment implications of the case.

Today's opinion overturns the district court's injunctions that
prevented Mishkoff from using the domain name "shopsatwillowbend.com" in
his fan site and variations on "taubmansucks.com" and
"shopsatwillowbendsucks.com" in his subsequent gripe sites.   In a
unanimous opinion authored by Circuit Judge Richard Surhheinrich, the
court wrote that Mishkoff clearly had no commercial intent in either of
his sites, that there was no likelihood that any visitors to his sites
would be confused as to their purpose and that allowing the injunctions
to remain would harm the public by curtailing free speech rights.

The Court stated, "Taubman concedes that Mishkoff is 'free to shout
"Taubman Sucks!" from the rooftops'… Essentially, this is what he has
done in his domain name. The rooftops of our past have evolved into the
internet domain names of our present."

"This is the first time an appellate court has addressed the trademark
and free speech rights for an Internet fan site not meant to mislead and
gripe site, and it was particularly important that the court get things
right.  This decision will set an important precedent protecting the
rights of citizens to criticize and to praise. It is quite a victory,"
said Paul Alan Levy, an attorney with the Public Citizen Litigation
Group who represented Mishkoff.

"I'm very gratified to learn that the Court of Appeals has agreed with
most of the points I've been making all along," Mishkoff said.
"Hopefully, the ruling will help to ensure that other people will be
able to exercise their right of free speech without having to worry
about being harassed by big companies with deep pockets."

Barbara Harvey has served as Mishkoff's local counsel in Detroit.
Professor Milton Mueller, director of the Syracuse University's Graduate
Program in Telecommunications and Network Management Research and
co-director of The Convergence Center, has served as Mishkoff's pro bono
expert witness who wrote a report on the case, available online at
http://www.taubmansucks.com/Act108.html.

A copy of the court's opinion is on the Web at
http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=03a0043p.06.
Public Citizen became involved in the case because it has a history of
defending free speech on the Internet. For more information on this and
other online free speech cases, go to
http://www.citizen.org/litigation/briefs/IntFreeSpch/index.cfm.

###

Public Citizen is a 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/litigation.html

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Date: Fri, 07 Feb 2003 13:25:41 -0500
From: "Milton Mueller" <Mueller () syr edu>
To: <harryh-dns () cpsr org>, <discuss () icann-ncc org>, <declan () well com>
Subject: A free speech court victory in a "sucks" domain name case
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A federal appeals court has upheld the right of a Texas man
to use the name of a local shopping mall as the domain name for a
Web site praising the mall, as well as a second web site denouncing
the mall's owner for suing him under the federal trademark laws.

The Opinion contained these important, precedent
setting words:

"The rooftops of our past have evolved into the internet domain
names of our present. We find that the domain name is a type of
public expression, no different in scope than a billboard or a pulpit,
and Mishkoff has a First Amendment right to express his opinion
about Taubman, and as long as his speech is not commercially
misleading, the Lanham Act cannot be summoned to prevent it."

I was a pro-bono expert witness for the Defendant in this
case. My testimony can be accessed here:
http://dcc.syr.edu/miscarticles/mishkoff.pdf

The decision can be accessed here:
http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=03a0043p.06




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