********** Date: Wed, 22 Aug 2001 12:12:30 -0400 From: "Paul Levy" <PLEVYat_private> To: <declanat_private> Subject: Man bites dog Declan: Here is a little story that provides an interesting footnote to Michael Geist's recent study showing how companies can get an extra advantage in enforcing their trademark claims against domain name registrants by selecting the UDRP provider that is most favorable to complainants. What does a company do when it can't even win in the UDRP? Bosley Medical Institute is a national company, based in California, which preys on insecurities about aging by persuading men and woman who cannot abide the thought of a receding hairline to get cosmetic surgery. Michael Kremer is a dissatisfied customer who is using the domain names bosleymedical.com and bosleymedicalviolations.com to post the results of various medical board proceedings and media reports that have led to Bosley's paying large fines and having his medical license placed on five years' probation. Bosley has been disciplined in some twenty states where he is licensed to practice. A copy of his consent order with Maryland's medical board, which describes Bosley's practices in some detail and contains Bosley's admission of the facts, is web-posted at http://www.docboard.org/md_orders/D4836201.120.PDF. Bosley went to WIPO to seize the domain name bosleymedical.com, but even in this favorable forum the arbitrator ruled that the noncommercial use of bosleymedical.com to publicize grievances against Bosley was perfectly legitimate, and that Bosley's UDRP complaint was nothing but an example of "cyberbullying." http://arbiter.wipo.int/domains/decisions/html/2000/d2000_1647.html. Completely unchastened by this reprimand, Bosley has now sued Kremer under the cybersquatting statute and the Lanham Act, seeking injunctive relief and millions of dollars in damages. And, rather than suing in California where Bosley is based, and where Kremer lives, it has sued him in Illinois, trying to put him at a disadvantage by making him defend 2000 miles from home. Although UDRP proceedings are not binding, and parties who lose in the UDRP are entitled to de novo review in federal court, the complaint does not even acknowledged the adverse ruling. This is the first occasion of which we are aware in which that rara avis - - a complainant who lost in the UDRP - - has nevertheless sued under the Lanham Act. The complaint also alleges libel, although so far as we are aware, Bosley never claimed libel against Dateline NBC, U.S. News and World Report, and other outlets when they publicized the medical board investigations. Dateline did its own "hidden camera" investigation of Bosley as well. We have just filed a motion to dismiss the lawsuit, arguing among other things that the case belongs in California, that the trademark claims are meritless, and that a California company cannot avoid the California SLAPP statute by suing California residents in another state. Our brief is web-posted at http://www.citizen.org/litigation/briefs/bosley.htm. A list of the cities where Bosley operates is available on Bosley's own web site at http://www.bosley.com/men/location.htm. A Public Citizen press release describing the case is posted at www.citizen.org/press/pr-lit40.htm. Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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