"Gripe" site operator wins court victory [fs]

[Declan McCullagh <declan () well com>]

---

[Whoops... missed Paul's message the first time. --Declan]


-------- Original Message --------
Subject: Re: [Politech] Ex-employee of networking firm nastygrammed	over 
"tellall" site [fs]
Date: Tue, 01 Jun 2004 10:05:49 -0400
From: Paul Levy <plevy () citizen org>
To: <declan () well com>

spoeaking of this topic, I don't think you have even mentioned our win
in Bosley  Medical v. Kremer (bosleymedical.com and
bosleymedicalviolations.com).  Bosley has just filed its notice of
appeal, and our motion for an award of attorney fees is due to be heard
on July 2.


-------- Original Message --------
Subject: New free speech victory for gripe site operator
Date: Wed, 05 May 2004 16:17:57 -0400
From: Paul Levy <plevy () citizen org>
To: <declan () well com>

I am pleased to announce that one more court has ruled that the
trademark laws allow a consumer critic to erect a web site that
criticizes a company and uses the company's trademark as its domain
name, without even inclusion of the word "sucks" or some other negative
word in the domain name.  Judge William Hayes of the US District Court
in San Diego dismissed the complaint of Bosley Medical Institute against
the web sites established by Michael Kremer at www.bosleymedical.com and
www.bosleymedicalviolations.com on two separate and independent grounds
- the web sites were completely noncommercial, and nobody who actually
reached the web sites could possibly be confused about whether Bosley
was their sponsor.  An important development on the "non-commercial use"
issue was that the court found non-commercial use even though, on one of
his web sites, Kremer provided a link to the Google archive of the
alt.baldspot newsgroup, on which Google accepts advertising.

We have been warning that the law protecting non-commercial web sites
of this sort against meritless trademark claims has become so clear that
trademark owners risk being held liable for attorney fees when they file
such suits.  In this case, Bosley had already lost in the UDRP, which
found it to be a case of cyberbullying, but nevertheless took Kremer to
court, and dragged him through nearly three years of legal proceedings.
Moreover, this is a particularly venal plaintiff - we have checked
Public Citizen's pioneering "Questionable Doctors" database, which
allows consumers to check whether doctors were subjected to medical
board discipline in other states as well as their own -  and we have
found that there is only one doctor in the whole country who has been
subjected to discipline in more states that Larry Lee Bosley.
Consequently, we have decided that this is an excellent first case to
seek an award of attorney fees on behalf of a domain name defendant.



For Immediate Release:                                  Contact:
Paul Alan Levy (202) 588-1000
May 5, 2004                                                     
    Valerie Collins (202) 588-7742

Dissatisfied Hair Restoration Customer Has Right to Criticize
Company on Web, Judge Rules
                        
Bosley Medical Institute, Which Has Offices in 31 States and D.C.,
 Loses Trademark Infringement Case

        WASHINGTON, D.C. - A dissatisfied customer of a California hair
restoration company has a right to use the company's name in an Internet
site he established to criticize the company, a federal judge has
decided.
        
        In a ruling issued Monday, U.S. District Judge William Q. Hayes
of the Southern District of California tossed out the lawsuit filed by
Bosley Medical Institute against former customer Michael Kremer, a
California resident.  In it, Bosley alleged that Kremer violated
trademark laws by using the company's name in his Web sites,
www.bosleymedical.com and www.bosleymedicalviolations.com.

        "This is a tremendous victory and once again affirms that people
have the right to air their views on the Web," said Paul Alan Levy, the
Public Citizen attorney who represented Kremer. "Mr. Kremer has every
right to post his views about Bosley on the Internet for all to see."

        Kremer set up the site after becoming dissatisfied with hair
restoration services he paid Bosley Medical to provide to him in 1991.
Bosley Medical is based in California and has additional offices in
Arkansas, Arizona, Colorado, Connecticut, Florida, Georgia, Illinois,
Indiana, Kansas, Louisiana, Massachusetts, Michigan, Minnesota,
Missouri, Nebraska, Nevada, New York, North Carolina, Iowa, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas,
Tennessee, Utah, Virginia, Washington, and the District of Columbia, as
well as British Columbia and Mexico.

        In January 2000, Kremer registered www.bosleymedical.com, then
notified the company of his plans, to give it a chance to object. The
company responded by filing a complaint for arbitration with World
Intellectual Property Organization (WIPO), a group in Switzerland.
Meanwhile, Kremer refrained from posting any material on his site.

        After the WIPO arbitrator ruled in Kremer's favor and
reprimanded Bosley for attempting to stifle critical speech, Kremer
registered the domain name www.bosleymedicalviolations.com and began to
post complaints about the company.

        Bosley then sued Kremer in Illinois on the grounds that one of
its offices was located there. The case was transferred to San Diego
because Kremer could not be sued so far from home.

        In the most recent suit, Bosley contended that Kremer was
violating the company's trademark. But to prove that, Bosley had to show
that Kremer was using the company's name for commercial gain. Kremer was
not; Kremer's sites are purely informational and Kremer receives no
income from them, the judge decided.  Further, there is no way a visitor
to one of Kremer's sites could mistake it for Bosley's site.

Bosley Medical has been disciplined in the past for a variety of
practices. It was fined $644,724 in 1996 over its medical and
advertising practices, and its medical license was suspended and placed
on probation for five years by the California medical board in 1999.
Bosley also has faced discipline charges in 20 other states. Bosley
currently is facing probation revocation hearings in California.

"For four years, Bosley Medical has relentlessly pursued Mr. Kremer on
what we knew all along were bogus claims," Levy said. "Bosley owes
Kremer a gigantic apology for dragging him through these court
proceedings for so long. We hope that other companies take note of this
case and conclude that going after their customers simply doesn't pay."

Charles Bird of Luce, Forward, Hamilton & Scripps LLP, www.luce.com,
participated as San Diego counsel in defending Kremer.

###
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/litigation.html


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