The Sixth Circuit, ruling in Taubman v. Mishkoff:
We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.
Mishkoff had created several "sucks" sites after being sued by the Taubman Company over a "Shops at Willowbend" site. For that site, Taubman inexplicably went after Mishkoff using the Lanham act--trademark violation--rather than anti-cybersquatting law, which would have been a slam-dunk for them. When Mishkoff put up the "sucks" sites, Taubman went after those by alleging Lanham Act violations as well.
The Sixth Circuit's decision, however, establishes freedom-of-speech protections for domain names that should trump even anti-cybersquatting laws, at least as far as "sucks" sites are concerned. This is a change in the balance of power, where ICANN had been skewed heavily towards trademark holders even for "sucks" sites.
Cyber-law is still not very well adapted to the medium. In this case, a Texas resident is being sued about a site resident on computers located in Texas whose subject is a mall located in Texas, and he's being sued in the Eastern District of Michigan, just as an example of how Internet jurisidiction is not yet sensible. Unfortunately, recent Congresses have been ill-suited to addressing the legal issues presented by the Internet, so the actual body of law is being slowly accreted in the courts, when it would be better designed as a piece.
Via Howard Bashman.
Posted by Greg at February 7, 2003 11:39 AM