> Begin forwarded message:
>
> From: Paul Levy <[log in to unmask]>
> Date: August 24, 2005 3:34:12 PM EDT
> To: [log in to unmask] 
> 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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