FC: Texas mall critic files motion to keep Taubmansucks.com

From: Declan McCullagh (declanat_private)
Date: Thu Jan 17 2002 - 04:20:12 PST

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    Paul kindly gives some URLs below to the Politech archive. Another
    URL, based on keywords, is this--
    http://www.politechbot.com/cgi-bin/politech.cgi?name=Mishkoff
    
    -Declan
    
    ---------- Forwarded message ----------
    Date: Wed, 16 Jan 2002 16:04:52 -0500
    From: Paul Levy <PLEVYat_private>
    To: declanat_private
    Subject: Texas mall critic fights for his speech rights
    
    Here is the latest installment in our effort to regain the free speech
    rights of Hank Mishkoff, the Dallas resident who has been enjoined from
    maintaining two web sites concerning the Shops at Willow Bend mall - - one
    a site simply describing the mall, and one reporting on the efforts of the
    mall's owner, the Taubman Company, successful thus far, to use its
    trademark rights to keep him from criticizing the mall owner and its
    litigation efforts against him.  Today we filed a motion to stay the
    preliminary injunction against the "Taubmansucks" web site.
    
    Here is a press release describing the motion, including the URL for our
    brief to the court of appeals:
    
    
    
    For Immediate Release:			Contact:  Paul Levy (202) 588-1000
    Jan. 16, 2002				    Shannon Little (202) 588-7742
    
    Court Should Not Prevent Texan from Criticizing Shopping Mall Developer
    
    Public Citizen Asks Court to Suspend Decision to Silence Online Critic
    
    	WASHINGTON, D.C. -- A Michigan district court's decision -- that
    an Internet user cannot name a company on a Web site that criticizes the
    company simply because the site is not operated for profit -- is in clear
    violation of the First Amendment, Public Citizen said in a brief filed
    with the U.S. Court of Appeals for the Sixth Circuit today. The court
    should suspend a preliminary injunction shutting down a Web site critical
    of a developer while it considers an appeal, Public Citizen said.
    
    	When the nationwide shopping mall developer Taubman Company
    announced plans to build a shopping center called "The Shops at Willow
    Bend" in the Dallas suburb of Plano, computer consultant Henry Mishkoff
    created a community information site under the domain name
    "www.shopsatwillowbend.com." The site was not built at the request of
    Taubman, but as a civic service by Mishkoff. He posted a diagram of the
    mall and information about its stores, as well as links to the official
    mall site and store sites.
    
    	Two years later, Taubman claimed that the "fan" site violated its
    trademark and demanded Mishkoff take it down and surrender the domain
    name. Mishkoff then built a second site under five domain names coupling
    the word "sucks" with the company's name and the name of its mall, such as
    "taubmansucks.com" and "willowbendsucks.com." On this site, he posted all
    of the court filings in the lawsuit and discussed what he saw as the waste
    of resources that this litigation represented, the abusive tactics used by
    Taubman's attorney and the bad decisions of the judge. In the meantime,
    the original site stayed up.
    
    	In October 2001, a district court required Mishkoff to take down
    the fan site while it considered the lawsuit, explaining that because the
    site was not operated for profit (and hence was noncommercial), Mishkoff
    would not be harmed by the injunction. Emboldened by that decision,
    Taubman asked the court to expand the injunction to include the "sucks"
    site ¯ which the court did in a Dec. 7 injunction ¯ based on the reasoning
    that Mishkoff was a "proven infringer" on the trademark "Shops at Willow
    Bend" and therefore had lost his right to use the Taubman name in his
    criticisms on the Internet.
    
    	Rejecting arguments made in an amicus curiae brief filed by Public
    Citizen, the district court decided to expand the injunction to the
    "sucks" site, requiring Mishkoff to take down the site. Because Public
    Citizen explained in its brief that trademark laws apply only to
    commercial activities, the judge's reasons now include the suspicion of
    commercial purpose, although the court does not specify how Mishkoff could
    have benefitted from the site.
    
    	"The court's decision is a dangerous step toward restricting
    non-commercial speech on the Internet," said Paul Levy, an attorney for
    Public Citizen. "Consumers have every right to criticize a company online.
    Congress and various courts have protected that right before and should do
    it again in this case."
    
    	Added Mishkoff, "Trademark laws would not prevent me from erecting
    a highway sign next to the mall announcing that 'Taubman Sucks.' The fact
    that making this statement on the Internet is so much more affordable does
    not provide a reason why the trademark laws should restrict my rights
    there any more than in a sign."
    
    		Following the district court's injunctions, Mishkoff took
    both sites down, although he has created a third site explaining the case
    in detail, http://www.giffordkrassgrohsprinklesucks.com/.
    
    	A copy of Public Citizen's appeal brief is available at
    http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801.
    Public Citizen has successfully defended the First Amendment rights of
    Internet critics in a series of cases. To learn more about this and other
    free speech cases, go to
    http://www.citizen.org/litigation/briefs/IntFreeSpch/index.cfm.
    
    ###
    
    Public Citizen is a nonprofit public interest organization based in
    Washington, D.C. For more information, please visit www.citizen.org.
    
    
    
    
    Your previous coverage of the case was at 
    
    
    "Texas mall tries to close critical website with similar name"
    http://www.politechbot.com/p-02796.html
    
    "Update on Texas mall assailing critical website with similar name"
    http://www.politechbot.com/p-02904.html
    
    "Embattled Texas mall critic returns with plaintiff's-lawyers-suck website"
    http://www.politechbot.com/p-02947.html
    
    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
    
    
    
    
    
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