Gripe Website Does Not Violate Trademark or Cybersquatting Laws

A website with a similar domain name as Jerry Falwell that criticized the evangelist does not violate either the Lanham Act or the Anti-cybersquatting act, the Fourth Circuit has found.

Jerry Falwell successfully obtained an injunction against the website www.fallwell.com under both the Lanham Act and the Consumers Protection and Anti-Cybersquatting Act. The site was critical of Rev. Falwell’s anti-gay positions.

Rev. Falwell has a common law trademark in “Falwell” and “Jerry Falwell” as well as a registered mark “Listen America With Jerry Falwell.” He maintains a website at www.falwell.com. The defendant registered the domain name www.fallwell.com after Rev. Falwell made comments that Christopher Lamparello believed were “untruths about gay people.”

Rev. Falwell successfully persuaded the trial court to grant an injunction shutting down Lamparello’s website. The appellate court found under the Lanham Act that there was no confusion between Rev. Falwell’s website and Lamparello’s website. The court dismissed the “initial interest confusion doctrine,” noting that the Fourth Circuit never has adopted the theory. Rather the appellate court requires an analysis of whether a likelihood of confusion exists by examining the allegedly infringing use in the contest in which it is seen by the ordinary consumer. “When dealing with domain names, this means a court must evaluate an allegedly infringing domain name in conjunction with the content of the website identified by the domain name.” A “gripe site” such as Lamparello’s does not cause confusion with Rev. Falwell’s website.

As to the cybersquatting claim, the court found that “Congress left little doubt that it did not intend for trademark laws to impinge the First Amendment rights of critics and commentators.” In particular, for cybersquatters, the courts may consider whether the use of the mark is a bona fide noncommercial or fair use. “The Legislature believed this provision necessary to ‘protect the rights of Internet users and the interest of all Americans in free speech and protected uses of trademarked names for such things as parody, comment, criticism, comparative advertising, news reporting, etc.”

The court concluded that a “gripe site” located at domain names nearly identical to the marks do not violate the Anticybersquatting Act.

Christopher Lamparello v. Jerry Falwell; Jerry Falwell Ministries, U.S. Court of Appeals, Fourth Cir. Nos. 04-2011 and 04-2122, August 24, 2005.