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Domain-Name Protest Is Protected Speech

Posted by timothy on from the damn-straight dept.

Lunartik links to this Detroit Free Press report, writing "The U.S. 6th Circuit Court of Appeals in Cincinnati ruled Friday that Michelle Grosse did not violate the law when she used the name of Lucas Nursery and Landscaping Inc. for a Web site she created to complain about the Canton, MI nursery. 'This is a very important case,' said Paul Levy, staff attorney with the consumer advocacy group Public Citizen. 'This is a mainstream circuit court that said using the Internet and the name of the company to criticize a company is perfectly legitimate.'"

19 of 177 comments (clear)

  1. I'm confused... by TR0GD0RtheBURNiNAT0R · · Score: 5, Insightful
    "This is a mainstream circuit court that said using the Internet and the name of the company to criticize a company is perfectly legitimate."

    How is this not legitimate???

    I thought usuing the name of a company to criticize said company was perfectly legal

    ...or am I supposed to refer to Micro$oft as something else?

    --
    This is my sig. There are many like it, but this one is mine.
    1. Re:I'm confused... by JayBlalock · · Score: 5, Insightful
      EXACTLY.

      Certain powers were attempting to twist trademark law into, essentially, outlawing negative speech about their products. They were just fighting it in the realm of the Internet, a place regarding which the courts can make very silly decisions, due to their misunderstanding of it.

      Now we just need a judgement striking down "Thou shalt not speak badly of us," terms in EULAs, which have been used to intimidate publications into not running negative reviews.

      --
      Bush: He's Liberal in all the wrong ways.
    2. Re:I'm confused... by Vancorps · · Score: 2, Insightful
      haha, wow, I like that sig

      Anyway, this has been a long issue but it is a little different on the net. On the net you find things by their name and so if the name is trademarked then using that name could be a complicated issue. I think its terrible that it was ever even and issue since going to microsoftsucks.com would in no way make a user think they could get microsoft products there.

      Yes it hurts the trademark but there has to be limits otherwise the only way to complain about something is to post on slashdot!
    3. Re:I'm confused... by ackthpt · · Score: 3, Insightful
      How is this not legitimate???

      Expect an appeal.

      Those PetsWarehouse suits a few years back were a mess, and undoubtably an abuse of the courts.

      Suppose someone registered a domain name www.robertnovakisaweasel.com, you could pretty much expect he would have filed similar suits to those he did.

      --

      A feeling of having made the same mistake before: Deja Foobar
    4. Re:I'm confused... by JayBlalock · · Score: 4, Insightful
      How did that become legal in the first place?

      It's not entirely legal, per se, as it's never really been tested. (AFAIK & IANAL) Many publications will back down rather than face a court battle from a major power, since even if they won, it would be a phyrric victory.

      And that, in turn, leads us right back to the current problem with our legal system, which is that, "He who has the money, wins."

      --
      Bush: He's Liberal in all the wrong ways.
    5. Re:I'm confused... by JayBlalock · · Score: 4, Insightful
      Wow, someone likes my .sig. Mainly I get flamed for it. :-)

      You point out the major argument that the Trademarked Powers were making. They were saying that the proliferation of (Company)Sucks.com sites was cutting into their market share by keeping people from seeing their official sites. This decision basically says, "Tough. Free Speech means you too can get shouted down."

      --
      Bush: He's Liberal in all the wrong ways.
    6. Re:I'm confused... by timeOday · · Score: 4, Insightful
      I think the issue is that she didn't just say "the company sucks," she registered "thecompany.com" for herself and put up her web page there. So if PETA had beaten mcdonalds.com in registering that domain name, it would still take you to a protest site today.

      Anyways just wanted to clarify, this was about domain names rather than any old use of the company name in protests.

    7. Re:I'm confused... by Anonymous Coward · · Score: 2, Insightful

      Watch out.

      You can't listen to what you like on the radio! Somewhere in the midwest a truant son of a minister might tune into Howard Stern.

      The public airwaves aren't for a hetrogenious public, but in reality only for a small minority of an extremely pious public who never offend anyone with anything they say or do.

      Howard Stern, salacious, but ultimately shallow and boring. My opinion of course. But he does have millions of fans. People who love his show and need it in some strange, and depressing, capacity. But their voice doesn't count. They're not salt of the earth enough.

      In a strange way I do hope that Bush wins again. That will almost assure a super-conservative supreme court, which in the process of making fantastic blunders will take more and more wealth of choice from the people in the urban areas forcing a real confrontation over our legal system, and ideas of freedom. The many will win that fight.

    8. Re:I'm confused... by Anonymous Coward · · Score: 2, Insightful

      Say you're a company called TR0GD0RtheBURNiNAT0R. You sell blank CD-R's online.

      Say I am a competitor of yours. Using www.TR0GD0RtheBURNiNAT0R.com is not legitimate (infringement).

      Say I am a competitor of yours. Using www.better-than-TR0GD0RtheBURNiNAT0R.com is legitimate (non-infringing opinion).

      Say I am an unhappy customer. Using www.TR0GD0RtheBURNiNAT0R-sucks.com is legitimate (non-infringing opinion).

      Say I hate you. Using any domain name at all to say that TR0GD0RtheBURNiNAT0R is a child molestor is not legitimate (libel).

      Say you are running for political office and I hate you. Using www.TR0GD0RtheBURNiNAT0R.com as a site opposing you IS legitimate (political and public figures do not enjoy the same protections as private citizens and companies).

      Some of this is covered in Doug Isenberg's excellent Gigalaw Guide to Internet Law.

      And, no, there is no dark cold wind blowing from the right trying to take away your freedoms. These are simply examples of companies asking for protection and not getting it, under laws that are decades-old.

    9. Re:I'm confused... by iminplaya · · Score: 2, Insightful

      Its nice that under this administration we are actually seeing an expansion of free speech rather than the reverse.

      It really doesn't make one bit of difference what administration we're under. Remember, it was the "other" administration that signed the DMCA into law, expanded the death penalty, gave $20 bil to his corporate buddies to cover their bad investments in Mexico, etc., etc. You're looking at two sides of the same coin(old cliche, I know) or as Kucinch put it, "they're both dialing for the same dollars.

      --
      What?
    10. Re:I'm confused... by Vancorps · · Score: 2, Insightful
      Sorry but... how so? Every pres right up to Bush Jr basically expanded on what the pres before them did. The difference here is that Bush rolled back all environmental regulations for power plants in the name of the economy, yeah, that worked!

      Might add every pres up to Bush was actually for the expansion of technology, Reagan, Bush Sr. and Clinton all really pushed the country to modernize which gave it a very strong economy that took some time to take hold but nevertheless Clinton had a much easier time of it because of all the modernization of infrustructure. So why does our economy suck? Because Bush jr cast out all the imported talent we had and now its easier and often cheaper to setup shop in another country. Bush has had all the same resources as Clinton arguably more because Bush has free reign over the legislature which is the big real reason that the DMCA was passed under Clinton. Of course the DMCA is totally screwing up a lot of research in this country, how do you stay ahead when you can't test what you have?

      Basically he's harming our ability to learn and produce new products which is the whole reason America became a military and economic super power to begin with. Our ability to confer with one another meant we could all work together, now with the DMCA most findings cannot be published/shared so work is divided and evolves at a much slower pace. This totally leaves out the banning of stem cell research. Not a complete ban but lets face it, it might as well been since he crippled it. So biotechnology and traditional technologies are being suppressed and surprise surprise our economy isn't really recovering, just temporary ups and downs rather than a slow and steady, might add healthy growth.
    11. Re:I'm confused... by Alsee · · Score: 2, Insightful

      If you truely do believe in trademark infringement

      I do. And patents and copyrights.

      this would seem to be a reasonable example of it

      Nope. I suspect you have (conciously or not) adsorbed the "intellectual property" theory of patents, trademarks, and copyrights. It's a lousy model and routinely leads to erroneous conclusions, as it does in this case.

      Such a radical departure from normal court rulings

      Nope. It's exactly in line with the law and "normal court rulings".

      The purpose of patents, trademarks, and copyrights, is for the public benefit. The purpose of trademarks is so that the public can know what they are buying and who they are buying it from. It is only a trademark violation if (intentionally or otherwise) you are likely to cause confusion that you are the other commercial entity.

      Not only does she have every right to use that trademark to criticize that company, she has every right to open a BUSINESS at that website and under that trademark, so long as she is not likely to cause confusion in the minds of the public that she is that other business. If you check the US Government patent and Trademark website you'll find a dozzen different companies all using the identical (live) trademark "Stax". A freight company, a software company, a magic-marker company, etc etc etc. If you check "Sunrise" and "Acme" there are 122 live listings each (a coincidence that they are both exactly 122).

      So she has every right to open a baby-supply store (nursery) and use the exact same trademark "lucasnursery". Or she could open a pizzaria called "lucasnursery". She just can't open a landscaping company and use that mark.

      Information is not and cannot be "property". A trademark is nothing but a peice of language. A company is granted certain limited exclusive rights on the use of that trademark in commerce. All language (including trademarks) are "property" of the public. That's easy to prove - all I have to do is point to Kleenex and Aspirin. Those were both trademarks "owned" by their respective companies. The public REVOKED all rights those companies had in those marks simply by ignoring them and using them as generic terms for tissues and acetylsalicylic acid.

      Patents and trademarks and copyrights are good and beneficial things, but trying to think of them as "property" inevitably leads to wrong conclusions and efforts to make harmful changes in law.

      can you ever be liberal in the right ways? ;)

      Well, to avoid a time-wasting argument over current controversial topics, I'd say that allowing blacks to sit at the front of the bus was at one time a "liberal" position. :)

      -

      --
      - - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
  2. Sadly... by robochan · · Score: 5, Insightful

    Although she owns the site name until 2005, Grosse said she is done. "I am so broke right now defending myself. . . . I defended freedom of speech but I don't want to open that can of worms again."
    Sadly, it costs a lot of money to exercise free speech in America

    --
    ...Rob
    The American Dream isn't an SUV and a house in the suburbs; it's Don't Tread On Me.
  3. I disagree by mcx101 · · Score: 5, Insightful

    I think it would have been acceptable if she had something like http://www.lucasnurserysucks.com but she didn't have the right to take the domain name that was the name of the company. Where are they supposed to have their website then? Not everyone necessarily agrees that Lucas Nursery and Landscaping Inc. sucks.

    --
    My operat~1 system unders~1 long filena~1 , does yours?
    1. Re:I disagree by InfiniteWisdom · · Score: 2, Insightful

      A company doesn't have some inherent right to own a domain name. I don't think this is any different than picketing a store.

    2. Re:I disagree by Ironica · · Score: 5, Insightful

      I think it would have been acceptable if she had something like http://www.lucasnurserysucks.com but she didn't have the right to take the domain name that was the name of the company.

      Interesting. How many "Lucas Nursery" businesses do you suppose there are out there? Besides landscaping and plants, there might be nursery schools under that name as well. How do you decide who has the "right" to take the domain name?

      Domain names are generally first-come, first-serve for exactly that reason. It's pointless to say whether she had the "right" to the domain name; they weren't trying to do business online and they didn't have a website, so she beat them to the punch.

      --
      Don't you wish your girlfriend was a geek like me?
  4. Re:Oh, Good by orthogonal · · Score: 4, Insightful

    Ah. So if I claim I got bad service from someone, and then produce some form of evidence to back it up (hello, Photoshop? Pictures of XY's company rep doing something awful, please), then I can set up a domain name and squat legally.

    Well, if your claim is false, you can be easily sued for libel.

    You see, there are existing remedies to protect against what you propose without resort to the "novel" -- read unprecedented and dangerous -- limitations on free speech that the plaintiff in this case, and too many corporations in general, advocate.

    But like most attempted usurpers of freedom, they spread FUD first, claiming that unless freedom is throttled, all sorts of bad things will happen -- and so Draconian new laws and new legal interpretations are needed.

    Much like what you're doing in your post -- or, may I be so bold, like the RIAA and its call for judge-less subpoenas, or advocates of the "War on Drugs" and the resulting erosion of 4th amendment rights, or the fear-mongering that brought about the so-called "Patriot Act".

    --
    Opinions on the Twiddler2 hand-held keyboard?
  5. Re:I find this rather suprising... by Ironica · · Score: 2, Insightful

    I'm suprised that it wasn't decided that she was using their name to trick potential customers into going to her site, since many people assume companyname.com will work. It'd be similar to someone registering slashdot.com (if it wasn't already registered) to make an anti-Slashdot site.

    No, it would be different in an important way. They weren't using the web to do business. They didn't accuse her of cybersquatting (i.e. they didn't go out and try to get the domain so that they *could* use it for business, and then find she had it). The difference between slashdot.org and slashdot.com is very slight and somewhat confusing, but the difference between Lucas Nursery, an RL business with no net presence, and lucasnursery.com, with no content implying that it's owned by the nursery, is a bit more pronounced.

    --
    Don't you wish your girlfriend was a geek like me?
  6. I always thought... by hummassa · · Score: 2, Insightful

    That the govment was the proxy of the corporations... ;-)

    --
    It's better to be the foot on the boot than the face on the pavement. ~~ tkx Kadin2048