Balancing trademark protections and freedom of speech

The Internet has vastly increased the average person’s ability to communicate with a diverse audience in an easy manner with relatively low input cost, reports E-Briefs. One spin-off of this is the growth in sites started by disgruntled customers that provide forums to criticise businesses. However, many companies targeted by so-called ‘gripe sites’ are fighting back, charging the sites with trademark infringement. The National Law Journal reports that courts are not buying the trademark argument and have consistently upheld the free speech rights of individuals to criticise business. Critics, however, charge that these suits are merely an attempt to wear down defendants through costly litigation. Paul Levy, of the Public Citizen Litigation Group, says, ‘Trademark law is being used improperly… to suppress perfectly legitimate, non-commercial speech, which we think is just beyond the purview of the trademark laws.’ However, trademark attorney, Virginia Richard, disagrees, stating that it is ‘the obligation of the trademark owner to protect its mark’, and adding that these cases ‘are filed in good faith’.

Several rulings in recent years have upheld a person’s right to criticise companies on the Internet. Most recently, the 5 th US Circuit Court of Appeals ruled in favour of a man who set up a Web site to complain about how he was treated during a home purchase. Another big win for gripe site advocates came in the 6th Circuit, which in March upheld Michelle Grosse’s right to create a non-commercial site on which she criticised Lucas Nursery, a landscaping company, for an alleged botched lawn job.

One case currently under review and supported by the American Civil Liberties Union concerns the domain name www.fallwell.com. Christopher Lamparello is appealing a ruling that the site infringes on the trademark of evangelist Jerry Falwell, reports Out-Law.com. Lamparello set up the site as a forum to debate the evangelist’s views on gays and lesbians. Falwell took exception to the use of a misspelling of his name and sued last year. In August, a US judge ruled that the domain was very similar to Falwell’s registered trademark ‘Jerry Falwell’ and that it could confuse Web users. But, he stayed an injunction awarded against Lamparello until his appeal had been heard. The ACLU have now submitted briefs to the 4th Circuit Court of Appeals arguing that Lamparello has a free speech right to use the domain as it is descriptive of content. In addition, says ACLU, criticism of a public figure is protected under the Constitution.

In another case, Alan and Linda Townsend, unhappy with the sprayed- on siding applied to their house, launched a Web site to complain and give other unsatisfied customers a forum. However, the product’s maker, Alvis Coatings, is claiming that the couple’s site infringes the company’s trademarks, defames its product and intentionally misleads and confuses consumers. The company is seeking more than $75 000 in damages in addition to unspecified punitive damages and attorney fees. Wired News reports that the federal case may help to shape the boundaries of online speech.

Such cases are not unique to the US. Across the border, Tupperware Canada asked a court to shut down a Web site that it says falsely accuses it of wanting to force its area distributors out of business, disband its party sales forces and sell mainly through stores. In addition, the company argues that the sites’ use of the word ‘Tupperwars’ unlawfully parodies and devalues its trademark, according to The Globe and Mail. The company has won a temporary order requiring cyber-critic Les Stewart, who runs who runs www.cafo.net (the site of Canadian Alliance of Franchise Operators) to close the ‘Tupperwars’ section of the site, according to a later report in The Globe and Mail.