FC: Criticize a censorhappy car dealer, get sued -- and lose?

From: Declan McCullagh (declanat_private)
Date: Tue Jun 11 2002 - 17:47:12 PDT

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    Date: Tue, 11 Jun 2002 10:15:12 -0400
    From: "Paul Levy" <PLEVYat_private>
    To: <declanat_private>
    Subject: Internet critic of auto dealership unfairly censored
    My colleague Amanda Frost is representing Thomas Ballock, the former 
    operator of a website create to criticize the business practices of a 
    Birmingham-area auto dealer.  The dealer obtained a preliminary injunction 
    against Ballock  before he was able to obtain counsel, on the ground that 
    the use of its name in his domain name and meta tags violated its 
    trademark; Amanda has just entered an appearance for Ballock and moved to 
    have the injunction dissolved.
    For Immediate Release:			Contact: Amanda Frost (202) 588-1000
    June 11, 2002					Shannon Little (202) 588-7742
    Internet Critic of Auto Dealer Was Unfairly Told to Dismantle Web Site
    Court Should Reconsider Sweeping First Amendment Restriction on Criticisms 
    Posted on the Internet, Public Citizen Says
    	WASHINGTON, D.C. - The dissatisfied customer of an Alabama auto dealership 
    should not have been forced to remove all mention of the dealership from a 
    Web site critical of the dealership, essentially forcing him to dismantle 
    the site. Also, the court that squelched the man's criticisms should 
    re-examine its order, Public Citizen argued in a motion filed this week 
    with the U.S. District Court in Alabama.
    	In May, the court granted a request by Crown Pontiac-Nissan of Hoover, 
    Ala., for an injunction preventing its customer, Thomas Ballock, from using 
    the dealership's name in the domain name or even in the text of his site. 
    Ballock had great difficulty presenting a defense because he did not have 
    an attorney at the time of the court hearing on the injunction. Nor had he 
    read or understood all of the papers submitted by Crown's attorneys. The 
    court should not have granted the dealership's request because it violated 
    Ballock's First Amendment rights and because he did not violate trademark 
    law, Public Citizen said.
    "If Crown's position in this case were correct, then consumers are 
    prohibited from criticizing businesses on the Internet," said Amanda Frost, 
    an attorney for the Public Citizen Litigation Group who wrote the brief. 
    "That result would clearly violate consumers' First Amendment rights."
    	Ballock's dispute with Crown began in February after problems with the 
    installation of a sunroof in a new car. He created the site 
    www.crownpontiacnissan.com, where he chronicled his experience with the 
    dealership and discussed the ways in which arbitration, a private dispute 
    resolution system, could hurt consumers. He placed prominent disclaimers on 
    his site so that users would not confuse it with Crown's official Web site, 
    and included a link to Crown's site for those who had reached his site in 
    	Nonetheless, Crown's attorney's argued that Ballock had violated trademark 
    laws and the Anti-cybersquatting Consumer Protection Act. However, Crown's 
    name has not been registered as a trademark, and Crown's arguments produced 
    no evidence of a loss of consumer sales or disruption of business due to 
    the site. The anticybersquatting law was designed to prevent private 
    citizens from buying up prominent domain names and selling them to 
    corporations. Ballock made no attempt to sell the domain name to Crown.
    	Following the injunction, Ballock removed his site completely from the 
    Internet and does not use the name "Crown Pontiac" in any Web site. He has 
    built a new site, www.hoovernissandealersucks.com, briefly describing his 
    experiences with an unnamed car dealership and problems with the 
    arbitration system.
    	In its brief, Public Citizen argues that the preliminary injunction was a 
    sweeping restriction that improperly imposes prior restraint on Ballock's 
    First Amendment rights to consumer commentary. If the court looks carefully 
    at the case, it will see that Crown is unlikely to be able to show that the 
    Web site infringed on its trademark or that it was damaged by the site's 
    existence. Further, there is no evidence that Ballock hoped to gain 
    financially from the site.
    "Crown is trying to keep any criticism of its business off the Web," Frost 
    said. "At the very least Ballock should be able to name Crown in the text, 
    if not in the domain name."
    Public Citizen is involved in this case because it has a history of 
    defending free speech on the Internet. A copy of the filing is available on 
    the Web at http://www.citizen.org/documents/CrownInjunction.pdf.
    Public Citizen is a nonprofit consumer advocacy organization based in 
    Washington, D.C. For more information, please visit www.citizen.org.
    Paul Alan Levy
    Public Citizen Litigation Group
    1600 - 20th Street, N.W.
    Washington, D.C. 20009
    (202) 588-1000
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