There are now several different courts of appeals that have upheld the right of individuals to post a non-commercial website using the domain name www.company.com, and there are as yet NO appellate decisions that forbid such websites outside the context of the serial cybersquatter who tries to erect a so-called gripe site as a CYA measure after being sued. In fact, it seems to me that we are getting close to the point where companies that sue over such websites have to consider seriously the possibility that they will not only lose the suit, but face a malicious prosecution action or other counter-measure from the consumer critic seeking damages for having been sued.
From the Press Release on a Recent Case:
In a victory for free speech on the Internet, the U.S. Court of Appeals for the Fifth Circuit today reversed a district court decision restricting the ability of a homebuilding company's customer to air his dissatisfaction on a gripe Website. The appeals court decision agreed with arguments made by Public Citizen, which represented the customer.
The case involves Joseph Maxwell, a Houston-area software engineer who was unhappy about his dealings with an agent of TMI Inc., a company that builds houses under the trademark TrendMaker Homes. Maxwell created a non-commercial Internet gripe site at www.trendmakerhome.com (soon to move to www.trendmakerhome.info). He chose not to add "sucks" to the domain name because he felt that TMI was basically a good company with quality products, but he had a complaint about one aspect of its business practices — a salesperson's misleading statements about what home models were available.
TMI alleged that Maxwell's site violated the Lanham Act, which governs commercial speech, by violating its trademark and potentially confusing users who were looking for TMI's actual site - www.trendmakerhomes.com. It also alleged that he violated the Anti-cybersquatting Consumer Protection Act (ACPA) and state trademark law. In February 2003, a Texas district court barred Maxwell from using 10 different TMI trademarks and ordered him to pay $80,000 in statutory damages and attorney fees.
The appeals court agreed with Public Citizen that Maxwell's site was entirely non-commercial and therefore the Lanham Act does not apply. Further, because Maxwell had no "bad faith" intent to profit from the site, TMI's argument regarding the ACPA was also unsupportable.
By Paul Alan Levy, Attorney
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