Falwell gripe site prevails in legal challenge
Christopher Lamparello's gripe site about Reverend Jerry Falwell has been held by the Fourth Circuit not to violate Falwell's trademark rights or to constitute cybersquatting. In Lamparello v. Falwell,Download file, the Court reversed the district court holding that had found Lamparello liable.
Lamparello's site, www.fallwell.com, criticizes Falwell over his "untruths about gay people," among other things. It includes a disclaimer on its home page that the site is not associated with Falwell, and a link back to Falwell's site, as well as the following poignant statement:
"I was just 12 years old. My family and I were on vacation in Virginia. My dad and I were watching television in our motel room. Jerry Falwell's 'Old Time Gospel Hour' was on. Reverend Falwell looked into the camera and, preaching against gay people, said, 'Even animals don't do that.' That was the first time in my life that I ever felt unworthy of the love of God."
The Court found that there was no likelihood of confusion that the the gripe site originated from Jerry Falwell.
"This likelihood-of-confusion test 'generally strikes a comfortable balance' between the First Amendment and the rights of markholders."
The Court rejected application of the "initial interest confusion" doctrine -- on the grounds that the gripe site was not diverting customers.
"The critical element -- use of another firm's mark to capture the markholder's customers and profits -- simply does not exist when the alleged infringer establishes a grip site that criticizes the markholder."
Falwell's cybersquatting claim also failed because Lamparello did not have a bad faith intent to profit from using the domain name, given that the purpose of the site was noncommercial criticism. Also, Lamparello did not register multiple domain names or attempt to bargain to sell the domain back to Falwell or to gain other advantage, which has occurred in other cases where cybersquatting by noncommercial sites has been found.
The case law on gripe sites continues to develop in a manner that recognizes the importance of First Amendment values in the trademark context, such as the 9th Circuit case of Bosely v. Kremer, decided in April, summarized here.
Paul Levy of Public Citizen Litigation Group represented Lamparello. Levy also represented the gripe site operator in the Bosely case. He received assistance from the Berkman Center for Internet and Society at Harvard Law School. The Berkman Center has further details on the case.
TrackBack URL for this entry:
Listed below are links to weblogs that reference 'Falwell gripe site prevails in legal challenge' from Silicon Valley Media Law Blog.
