Some back messages: http://www.politechbot.com/cgi-bin/politech.cgi?name=Mishkoff --- Date: Fri, 07 Feb 2003 13:23:05 -0500 From: "Paul Levy" <PLEVYat_private> To: <declanat_private> Subject: Big win for free speech on the Internet I am pleased to be able to report that, in a decision released today, the United States Court of Appeals for the Sixth Circuit has reversed the two preliminary injunctions that had been issued against the maintenance of the web sites at www.shopsatwillowbend,com and www.taubmansucks.com. The decision contains some ringing language about the importance of free speech oin the Internet and the important of domain names as a way to call attention to non-confusing and non-commercial web sites. A copy of our press release follows; it can also be viewed on our web site at http://www.citizen.org/pressroom/release.cfm?ID=1326 The American Civil Liberties Union filed a brief as amicus curiae in support of our decision on appeal. For Immediate Release: Contact: Paul Alan Levy (202) 588-1000 Feb. 7, 2003 Shannon Little (202) 588-7742 Appeals Court Upholds Right of Online Critic to Use Shopping Mall's Name in Domain Name Dallas Web Designer Did Not Confuse Internet Users, Infringe on Trademark in Fan Site, Gripe Sites WASHINGTON, D.C. - In a ringing affirmation of free speech rights on the Internet, a federal appeals court has upheld the right of a Dallas man to use the name of a local shopping mall as the domain name for a Web site singing the praises of that mall, as well as a second Web site denouncing the mall's owner for suing him under the federal trademark laws. Computer consultant Henry Mishkoff has been involved in a dispute with the nationwide shopping mall developer Taubman Company, which was building a mall called The Shops at Willow Bend, in Plano, Texas, near his Dallas home. Mishkoff originally built a "fan site" praising the mall, but after Taubman claimed his site violated its trademark and demanded it be taken down, he developed a site criticizing the company. In the fall of 2001, the Michigan district court ordered Mishkoff to remove both of his sites from the Web, taking a dangerous step toward restricting non-commercial speech on the Internet. The appeals court suspended the order against the gripe site in March while it considered the First Amendment implications of the case. Today's opinion overturns the district court's injunctions that prevented Mishkoff from using the domain name "shopsatwillowbend.com" in his fan site and variations on "taubmansucks.com" and "shopsatwillowbendsucks.com" in his subsequent gripe sites. In a unanimous opinion authored by Circuit Judge Richard Surhheinrich, the court wrote that Mishkoff clearly had no commercial intent in either of his sites, that there was no likelihood that any visitors to his sites would be confused as to their purpose and that allowing the injunctions to remain would harm the public by curtailing free speech rights. The Court stated, "Taubman concedes that Mishkoff is 'free to shout "Taubman Sucks!" from the rooftops'… Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present." "This is the first time an appellate court has addressed the trademark and free speech rights for an Internet fan site not meant to mislead and gripe site, and it was particularly important that the court get things right. This decision will set an important precedent protecting the rights of citizens to criticize and to praise. It is quite a victory," said Paul Alan Levy, an attorney with the Public Citizen Litigation Group who represented Mishkoff. "I'm very gratified to learn that the Court of Appeals has agreed with most of the points I've been making all along," Mishkoff said. "Hopefully, the ruling will help to ensure that other people will be able to exercise their right of free speech without having to worry about being harassed by big companies with deep pockets." Barbara Harvey has served as Mishkoff's local counsel in Detroit. Professor Milton Mueller, director of the Syracuse University's Graduate Program in Telecommunications and Network Management Research and co-director of The Convergence Center, has served as Mishkoff's pro bono expert witness who wrote a report on the case, available online at http://www.taubmansucks.com/Act108.html. A copy of the court's opinion is on the Web at http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=03a0043p.06. Public Citizen became involved in the case because it has a history of defending free speech on the Internet. For more information on this and other online free speech cases, go to http://www.citizen.org/litigation/briefs/IntFreeSpch/index.cfm. ### 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 http://www.citizen.org/litigation/litigation.html --- Date: Fri, 07 Feb 2003 13:25:41 -0500 From: "Milton Mueller" <Muellerat_private> To: <harryh-dnsat_private>, <discuss@icann-ncc.org>, <declanat_private> Subject: A free speech court victory in a "sucks" domain name case Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Disposition: inline Content-Transfer-Encoding: 8bit A federal appeals court has upheld the right of a Texas man to use the name of a local shopping mall as the domain name for a Web site praising the mall, as well as a second web site denouncing the mall's owner for suing him under the federal trademark laws. The Opinion contained these important, precedent setting words: "The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it." I was a pro-bono expert witness for the Defendant in this case. My testimony can be accessed here: http://dcc.syr.edu/miscarticles/mishkoff.pdf The decision can be accessed here: http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=03a0043p.06 ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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