Ruling in domain name dispute over critic site
The Ninth Circuit Court of Appeals has ruled in Bosley Medical Institute v. Kremer,Download file, affirming the lower court's holding that use of a trademark as a domain name does not violate federal trademark law where the use is noncommercial. Kremer is a dissatisfied hair replacement patient who registered and uses the domain name BosleyMedical.com to run a consumer commentary site that is highly critical of Bosley Medical.
According to the Court, "The Supreme Court has made it clear that trademark infringement law prevents only unauthorized uses of a trademark in connection with a commercial transaction in which the trademark is being used to confuse potential customers." However the court reversed and permitted the case to go forward against Kremer on two grounds. First, . . .
Kremer could be liable for violating the Anticybersquatting Consumer Protection Act - if it can be proven that he had a "bad faith intent to profit" from use of the trademark in the domain name. Second, Kremer's attempt to strike Bosley's state-law claims under California's anti-SLAPP statute failed because the Court concluded a trademark infringement suit does not necessarily impair free speech rights.
Kremer is represented in the case by Paul Levy of Public Citizen Litigation Group, and this case speaks to the point made by Dan Gillmor at his talk today regarding some of the legal risks involved with grassroots media efforts.
Cathy Kirkman is a partner at Wilson Sonsini Goodrich & Rosati in Palo Alto, California. Her practice focuses on intellectual