Falwell critic can
keep domain name
Anne Broache, CNET
News.com from the NYTimes on the Web, August 25, 2005
A Web site with a domain name
resembling Rev. Jerry Falwell's can continue to vent about the preacher's
anti-gay views, a federal appeals court ruled on Wednesday.
A three-judge panel on the U.S. Court of Appeals for the Fourth Circuit reversed
a lower court's ruling, which had prohibited Christopher Lamparello from
"maintaining a gripe Web site critical of Jerry Falwell," the appeals court
opinion said.
Falwell's attorney, John Midlen, said he was "disappointed and dismayed" at the
decision and plans to seek a rehearing, while Lamparello's attorney, Paul Levy,
in an e-mail hailed the decision as "a very important Internet free-speech
decision, perhaps the most significant of our domain name cases from the past
several years."
Lamparello registered Fallwell.com in 1999 after hearing Falwell give an
interview containing what he considered to be offensive opinions about
homosexuality, according to the appeals court opinion. The front page of
the site, Fallwell.com, implores visitors to continue exploring the site "to see
why Rev. Falwell is completely wrong about people who are gay or lesbian."
Inside, it links to articles intended to dispel what Lamparello deemed untruths
about gay people. It also contains disclaimers that contain links to
Falwell's official site.
Falwell sent Lamparello letters in October 2001 and June 2003 demanding that the
site be taken down and ultimately filed claims of trademark infringement, false
designation of origin, unfair competition and cybersquatting. A district
court last year enjoined Lamparello from using the domain name and required him
to transfer it to Falwell.
But the appeals court viewed the situation in a different light. One of
the major factors in trademark cases, the court said, is whether use of a
similar name creates a "likelihood of confusion" for those who read it.
In this case, "it was so clear that his Web site did not create any likelihood
of confusion about whether Falwell sponsored it," Levy said in an e-mail.
The court agreed. "Lamparello's Web site looks nothing like Reverend
Falwell's; indeed, Lamparello has made no attempt to imitate Reverend Falwell's
Web site," wrote Judge Diana Motz.
"When dealing with domain names, this means a court must evaluate an allegedly
infringing domain name in conjunction with the content of the Web site
identified by the domain name," Motz went on.
But the same appeals court in 2001 ruled against the operator of a Web site,
then at Peta.org, that parodied the acronym for animal-protection group People
for the Ethical Treatment of Animals by renaming it People Eating Tasty Animals.
(That site is still accessible, only at a different URL.) The court held
that the site could not remain at that domain because it was likely to cause
confusion and prevent people from reaching the animal-rights organization's
site.
Levy said the recent opinion represents an important shift in thinking about
trademarks and domain names. "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 away from the Web
sites of trademark holders," he said.
Midlen said the appeals court erred by failing to focus exclusively on the
domain name in question. "We have never alleged or argued or litigated
whether or not ... the content of his Web site was confusing," he said.
"We said all along that he is entitled to say on his Web site whatever he wishes
to say ... Our basic contention is that the Internet surfer who misspells Dr.
Falwell's name in looking for him on the Internet is unwittingly hijacked to the
pro-gay site that is operated by Mr. Lamparello, and the public is deceived in
that action."
A federal judge in 2003 dismissed another case Falwell brought against the
operator of parody sites hosted on
Jerryfalwell.com and
Jerryfallwell.com.
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