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April 5, 2005
I'm Not Only a Member of the Hair Club for Men, I'm Also...
...entitled to fair use under the Lanham Act.
Big news from yesterday: the Ninth Circuit ruling (PDF) that a hair "restoration" company can't use trademark law to strip a domain name from an unhappy customer who set up a website to criticize the company. The Court had not a little bit of fun with language in the opinion:
Defendant Michael Kremer was dissatisfied with the hair restoration services provided to him by the Bosley Medical 3978 BOSLEY MEDICAL INSTITUTE v. KREMER Institute, Inc. In a bald-faced effort to get even, Kremer started a website at www.BosleyMedical.com, which, to put it mildly, was uncomplimentary of the Bosley Medical Institute. The problem is that "Bosley Medical" is the registered trademark of the Bosley Medical Institute, Inc., which brought suit against Kremer for trademark infringement and like claims. Kremer argues that noncommercial use of the mark is not actionable as infringement under the Lanham Act. Bosley responds that Kremer is splitting hairs.
Like the district court, we agree with Kremer. We hold today that the noncommercial use of a trademark as the domain name of a website the subject of which is consumer commentary about the products and services represented by the mark does not constitute infringement under the Lanham Act.
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