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Jerry Falwell Wins Dispute Over Fallwell.com
setzman writes "According to this article from CNN, conservative minister Jerry Falwell has succeeded in shutting down a web site run by a gay activist on the domain fallwell.com. The judge said it was 'nearly identical' to the registered trademark 'Jerry Falwell' name and was likely to be confusing to Web surfers." (This was a Federal case, held in the 4th Circuit Court.)
>>his is clear intent to use some one else's name to generate traffic and money for your site, which I believe is a clear violation of (the correct reading) copyright laws.
>>
No it's not... the ruling seemed to center around a registered trademark.
copyright!=trademark
Me, I think it's crap... trademarks aren't all encompassing (or shouldn't be)... now if the owner of the site was in the same industry, maybe it would make more sense...
*shrug*
e.
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I agree that using another entity's name to divert traffic for your own means is a violation, what about the use of derivations that show a defined antagonistic slant? For example, what if someone hosts www.fallwellsucks.com?
I've heard of companies going after people that host www.<entity>sucks.com sites, but I think that they most definitely be allowed since the name is clear in its differentiation from, and bias against, the entity.
Considering that about 50% of all posts are already flamebait not worth responding to, I have to go with a couple of the more intelligent posts in saying that intential use of common spelling errors to increase traffice to a website should be ruled against. Had this group had a real claim to the Fallwell name I'd see most people's disagreement with the ruling. But sadly it comes down the the bottom line that most who are against this ruling only due to a religious/political view instead of a fair assessment of the case.
Dedicated Cthulhu Cultist since 4523 BC.
One of the legal standards of trademark infringement is "likelihood of confusion." Clearly this site intended to capitalize on this very thing, and so violate Falwell's intellectual property. However, parody is acceptable under the copyright law, but one's parody still cannot violate trademarks and other IP. But trademark coverage only extends to certain categories, e.g. a trademark registration for a web site covers web site infringement. One does not automatically have a registration in all categories. I laughed years ago when Paramount unsuccessfully sued a music group called "The Romulans," who had a Roman-style motif. At the time, Paramount only had a TM for "Romulans" that protected a 70s-era Star Trek action figure. The judge in the case said there was no likelihood of confusion between a music group and a little toy. So you /. regulars are all anti-IP, what do you think?
Jerry Falwell is a religious zealot thinly disguised as an ultra-conservative Christian.
This proves my point to a T. Falwell's religious and political practices have NOTHING to do with the lawsuit. What difference does it make what Falwell subscribes to religiously and politically? From the way this sounds it's as if certain members would have Falwell squelched in the name of free speech.
Dedicated Cthulhu Cultist since 4523 BC.
He's selling his brand of Jesus. Been in business for a long time.
Now if somebody capitalizes on his name to lure people on a site that hurts his business, that's unfair competition.
JerrySucks.Com would be fine with me, as would JerryIsALoser.com. But not what the guy used. It's clearly outside the bounds.
A more interesting question would be: what if there were another person named Jerry Fallwell who, for instance, believed that Jesus came from a UFO? Could HE register the site? Wasn't there some guy, Mike Rowe, who registered MikeRoweSoft.com last year? Does the first public person with a name get it for all time?
Okay, maybe I'm just nuts ... but why shouldn't someone have the intent to tarnish or disparage?
I'm not entirely sure whose "side" of this I fall on, but let me declare my prejudices: I am a fundamentalist Christian, so that might make you think I'm biased toward Mr. Falwell. But I don't believe Falwell is a Christian nor a preacher of the Christian Gospel, so that might make you think I'm biased against.
It seems to me this decision is legally correct. I thought at first the website owner was actually named Fallwell (note spelling) but apparently that is not the case. According to law as it stands, the site was registered in bad faith and should apparently be taken away. Since I believe in the rule of law, I would tend to agree that this should be done even if I disagree with the law in question (and that if there's a problem with the law it should be changed).
So, is there a problem with the law? I kind of feel like there is. In fact, I kind of feel like the First Amendment would make whatever law is involved here unconstitutional. Given that we're told our rights to speech CANNOT be infringed, where do we really get off saying that people can't say bad things about other people? Sure, the site tarnishes and disparages Mr. Falwell ... so what's the big deal? People tarnish and disparage me all the time. And I dare say Mr. Falwell does his own tarnishing and disparaging of some folks. Why is some of this protected speech and some of it illegal?
I was under the impression that trademark law was about preventing someone from misrepresenting themselves or their business as you or your business. That there had to be some reasonable chance that those encountering the trademark violation could confuse it for the real thing. Now, let's be honest ... is someone looking for Mr. Falwell online going to be confused by this site into thinking Mr. Falwell is suddenly posting gay activist material?
And if someone really was that confused ... aren't they really beyond help no matter how many laws we pass or legal actions we take?
In this case I don't see how you could possibly confuse these two. And even in cases where confusion could possibly result ... I'm still not sure why the burden is not on the consumer/customer/whoever to verify identity. We live in a world where it doesn't take long to confirm or disprove facts. Nowadays when you hear an urban legend, you can google around and usually find out the truth, even amongst websites that continue to propagate the legend. Here's an example exercise: is "Duck tape" a proper spelling of "Duct tape"? The answer may surprise you, and even though the common misknowledge about the origin of this term is all over the internet, the truth exists and comes up high on a search. Seems to me that in the same way if some entity misrepresents itself as another entity, it won't take long for someone on the web to state that fact and for that fact to start becoming evident on a search. (And in the meantime we have fraud law to deal with the problem if anyone is taken in.)
Why exactly is our legal system worried about tarnishing, disparaging, or people with so little mental prowess they would confuse Jerry Falwell with a gay activist?
Secession is the right of all sentient beings.
If the guy's site was www.mysite.com and had the same content, Falwell would have no recourse. This ruling isn't about the pure content, but rather the site's use of the domain to trick people into going to it.
Free speech isn't the issue here. Deception is.
Hrm... I recall the http://www.katie.com/ fiasco, and in that case, I think the right result was finally achieved. The publisher blinked.
This case though seems different.
You have an individual who disagrees with with Jerry Fallwell concerning homosexuality and gay rights. That's all good. If this were merely a parody or disenting view website I'd think that it should fall under free-speech guidelines. But the guy had links to Amazon for a book he published. The arguement then becomes that this was not an issue of free speech, but rather commericially motivated.
Is this the correct reasoning, I don't know. But based on what I read in the article, I don't think the judge erred in his decision. The arguements presented to the judge seemed to be that the use of falwell.com was a deliberate attempt to use the etablished name of Fallwell in an attempt to drive traffic to his site for the intent of selling more books. Asked to base a decision on that regard, and asked to consider this under trademark law, I don't think the judge really could have decided otherwise.
Was this an attempt by Jerry Fallwell and his ministry to silence criticism of his preachings? I'd say most certainly, and ethically, that sort of attack against falwell.com was wrong. Far better would have been to ask the owner of falwell.com to have a link saying something like `if you meant to go to blah blah blah`. But then again, from what I have seen of Jerry Fallwell, reasonable might have been too much to hope for.
I should have been more precise in stating my views originally.
gOOpie
And I should have remembered to add break-tags in my original message... darn lack of coffee!
The argument is basically: This guy is using my name to promote his agenda, which is to attack my agenda. Please make him stop.
The ruling is not limiting the free speech of the website owner. They did not say he wasn't allowed to say what he wanted to. However, it is preventing that website owner from using confusion about the spelling of Falwell's own name as a conduit to criticize Falwell.
If the domain had been 'falwellthefucktard.com', there would have been no problem. There would have been no confusing that the site you're visiting is not Jerry's site.
It CAN be brought up as a trade issue, as Falwell apparently uses his website for the sale of his book(s).
It's a Federal court, by the way, which is an important distinction. The court's ruling is simply that you cannot use confusion as a means to further your own agenda.
Just cuz Falwell's a prick doesn't mean that we're allowed to abuse his name to endanger his livelihood. He can be removed from the popular eye with education and tolerance, without resorting to trickery.
~D
This sig has been enciphered with a one-time pad. It could say almost anything.
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
OMG CHRISIANZ ARE TEH ST00P1D!!! LOL OMG!
Timothy was right to edit your submission, but not because he "clarified" it, but because he removed your bigoted conclusion.
If the domain in question were "muslum.org", would you be joking about how people trying to go to muslim.org are likely to be confused? Considering, you know, that they're poor illiterate Muslims? Or is it only funny because Christians are fair game for ridicule?
Dewey, what part of this looks like authorities should be involved?