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[Whoops... missed Paul's message the first time. --Declan]
-------- Original Message --------
Subject: Re: [Politech] Ex-employee of networking firm nastygrammed over "tellall" site [fs]
Date: Tue, 01 Jun 2004 10:05:49 -0400
From: Paul Levy <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
spoeaking of this topic, I don't think you have even mentioned our win in Bosley Medical v. Kremer (bosleymedical.com and bosleymedicalviolations.com). Bosley has just filed its notice of appeal, and our motion for an award of attorney fees is due to be heard on July 2.
-------- Original Message -------- Subject: New free speech victory for gripe site operator Date: Wed, 05 May 2004 16:17:57 -0400 From: Paul Levy <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]>
I am pleased to announce that one more court has ruled that the trademark laws allow a consumer critic to erect a web site that criticizes a company and uses the company's trademark as its domain name, without even inclusion of the word "sucks" or some other negative word in the domain name. Judge William Hayes of the US District Court in San Diego dismissed the complaint of Bosley Medical Institute against the web sites established by Michael Kremer at www.bosleymedical.com and www.bosleymedicalviolations.com on two separate and independent grounds - the web sites were completely noncommercial, and nobody who actually reached the web sites could possibly be confused about whether Bosley was their sponsor. An important development on the "non-commercial use" issue was that the court found non-commercial use even though, on one of his web sites, Kremer provided a link to the Google archive of the alt.baldspot newsgroup, on which Google accepts advertising.
We have been warning that the law protecting non-commercial web sites of this sort against meritless trademark claims has become so clear that trademark owners risk being held liable for attorney fees when they file such suits. In this case, Bosley had already lost in the UDRP, which found it to be a case of cyberbullying, but nevertheless took Kremer to court, and dragged him through nearly three years of legal proceedings. Moreover, this is a particularly venal plaintiff - we have checked Public Citizen's pioneering "Questionable Doctors" database, which allows consumers to check whether doctors were subjected to medical board discipline in other states as well as their own - and we have found that there is only one doctor in the whole country who has been subjected to discipline in more states that Larry Lee Bosley. Consequently, we have decided that this is an excellent first case to seek an award of attorney fees on behalf of a domain name defendant.
For Immediate Release: Contact: Paul Alan Levy (202) 588-1000 May 5, 2004 Valerie Collins (202) 588-7742
Dissatisfied Hair Restoration Customer Has Right to Criticize Company on Web, Judge Rules Bosley Medical Institute, Which Has Offices in 31 States and D.C., Loses Trademark Infringement Case
WASHINGTON, D.C. - A dissatisfied customer of a California hair restoration company has a right to use the company's name in an Internet site he established to criticize the company, a federal judge has decided. In a ruling issued Monday, U.S. District Judge William Q. Hayes of the Southern District of California tossed out the lawsuit filed by Bosley Medical Institute against former customer Michael Kremer, a California resident. In it, Bosley alleged that Kremer violated trademark laws by using the company's name in his Web sites, www.bosleymedical.com and www.bosleymedicalviolations.com.
"This is a tremendous victory and once again affirms that people have the right to air their views on the Web," said Paul Alan Levy, the Public Citizen attorney who represented Kremer. "Mr. Kremer has every right to post his views about Bosley on the Internet for all to see."
Kremer set up the site after becoming dissatisfied with hair restoration services he paid Bosley Medical to provide to him in 1991. Bosley Medical is based in California and has additional offices in Arkansas, Arizona, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New York, North Carolina, Iowa, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Tennessee, Utah, Virginia, Washington, and the District of Columbia, as well as British Columbia and Mexico.
In January 2000, Kremer registered www.bosleymedical.com, then notified the company of his plans, to give it a chance to object. The company responded by filing a complaint for arbitration with World Intellectual Property Organization (WIPO), a group in Switzerland. Meanwhile, Kremer refrained from posting any material on his site.
After the WIPO arbitrator ruled in Kremer's favor and reprimanded Bosley for attempting to stifle critical speech, Kremer registered the domain name www.bosleymedicalviolations.com and began to post complaints about the company.
Bosley then sued Kremer in Illinois on the grounds that one of its offices was located there. The case was transferred to San Diego because Kremer could not be sued so far from home.
In the most recent suit, Bosley contended that Kremer was violating the company's trademark. But to prove that, Bosley had to show that Kremer was using the company's name for commercial gain. Kremer was not; Kremer's sites are purely informational and Kremer receives no income from them, the judge decided. Further, there is no way a visitor to one of Kremer's sites could mistake it for Bosley's site.
Bosley Medical has been disciplined in the past for a variety of practices. It was fined $644,724 in 1996 over its medical and advertising practices, and its medical license was suspended and placed on probation for five years by the California medical board in 1999. Bosley also has faced discipline charges in 20 other states. Bosley currently is facing probation revocation hearings in California.
"For four years, Bosley Medical has relentlessly pursued Mr. Kremer on what we knew all along were bogus claims," Levy said. "Bosley owes Kremer a gigantic apology for dragging him through these court proceedings for so long. We hope that other companies take note of this case and conclude that going after their customers simply doesn't pay."
Charles Bird of Luce, Forward, Hamilton & Scripps LLP, www.luce.com, participated as San Diego counsel in defending Kremer.
### Public Citizen is a national, 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
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