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April 6, 2005
Marty Schwimmer digs deeper into the gripe site decision [PDF] that has Paul Levy, Michael Froomkin, and Fred von Lohmann so excited about the freedom to publicly criticize a company even when it has a well-guarded trademark. In short, Marty believes it's significant that the ACPA claims persist, and that the case may eventually turn on whether the griper had the intention not only of criticizing but also extorting -- a bad faith intent to profit from making Bosley Medical Institute, well, look bad:
There is a lengthy discussion of trademark infringement and the Court held that Kremer did not make commercial use of Bosley's marks (and it dismissed the infringement cause). I don't think this is surprising (but am surprised that others don't think its surprising).
What's interesting (to me) is the ACPA discussion (p. 3988-93). The Ninth Circuit notes that, unlike infringement, there is no commercial use requirement. It also notes that:
Allowing a cybersquatter to register a domain name with a bad faith intent to profit but get around the law by making noncommercial use of the mark would run counter to the purpose of the Act.
Determining that the District Court erred by imposing a commercial use requirement, the Circuit Court remanded the ACPA claim and if you read between the lines, it appears to direct Bosley to focus on the 'extortion' angle to see if that proves bad intent.
I've surveyed the blogosphere and this decision is being characterized as a victory for 'gripe sites.' (See here, here, and here). With regard to the infringement analysis, it is.
However, I think the fact that the ACPA count survived is important. It is hard to prove intent, and it is hard to reveal purposeful hostility masquerading as gratuitous hostility. But this case takes one of the hardest ACPA cases to win and suggests a way.
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