[governance] From the Christian Coalition "action alert", 8-20-05

[William Drake]

Hi,
> -----Original Message-----
> From: governance-bounces at lists.cpsr.org
> [mailto:governance-bounces at lists.cpsr.org]On Behalf Of Carlos Afonso

> Wow, the opening paragraph of BD's message seems extracted+adapted
> directly from Umberto Eco's "Sette anni di desiderio"! :) In other
> words, probably all that is going to be written has probably already
> been written...
>
> --c.a.

Thanks, Carlos.  Makes me wish I could read Italian!

Further to (and hopefully not belaboring) the question of things that
could get the religious right interested in Internet governance, below is
an item from Declan McCullagh's Politech list.

Best,

BD


-------- Original Message --------
Subject: New Internet free speech ruling
Date: Wed, 24 Aug 2005 15:11:11 -0400
From: Paul Levy <plevy at citizen.org>
To: <declan at well.com>

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.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation


_______________________________________________
governance mailing list
governance at lists.cpsr.org
https://ssl.cpsr.org/mailman/listinfo/governance