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    Lawsuits and Judicial Decisions Domain Names ARE Protected Speech
    posted by Mueller on Friday February 07 2003, @10:48AM

    A federal appeals court has upheld the right of a Texas man to use the name of a local shopping mall as the domain name for a Web site praising the mall, as well as a second web site denouncing the mall's owner for suing him under the federal trademark laws.



    The Opinion contained these important, precedent setting words:

    "The rooftops of our past have evolved into the internet domain names of our present. 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."

    I was a pro-bono expert witness for the Defendant in this case. My testimony can be accessed here.

    The decision can be accessed here.

     
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    This discussion has been archived. No new comments can be posted.
    Domain Names ARE Protected Speech | Log in/Create an Account | Top | 6 comments | Search Discussion
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    Well Done
    by WIPOorgUK on Friday February 07 2003, @02:10PM (#11116)
    User #3146 Info | http://wipo.org.uk/
    I was one of Hank's many supporters and have always been convinced and commited to the fact that domain names are a matter of free speech.

    You have now proved it.

    Recently I uncovered a case that proves beyond doubt that the US government overreach to deny free speech with Sunrise and UDRP.

    Commodity Trend Service, Inc., Plaintiff-Appellant v. Commodity Futures Trading Commission, Defendant-Appellee.

    38. However, the government cannot overreach in its attempts to protect the public from fraud. Laws that primarily prohibit fully protected speech along with potentially fraudulent speech often violate the First Amendment, even if the law's stated purpose is to prevent fraud; instead, more precise measures must be used.

    Likewise, the government cannot label certain speech as fraudulent so as to deprive it of First Amendment protection.

    http://www.ca7.uscourts.gov/fox/foxweb.exe/Op3?yr= 99&num=4142&Submit1=Request+Opinion

    This means they cannot let trademarks stop people using any words on the excuse of preventing fraud - a more precise measure MUST BE USED e.g. adding a protected TLD to identify that the domain is a trademark - like .reg for example!
    [ Reply to This | Parent ]
    • Link update by WIPOorgUK Sunday February 09 2003, @12:28AM
    Relationship to privacy of whois information
    by phoffman@proper.com on Friday February 07 2003, @03:21PM (#11117)
    User #2063 Info
    So, if ownership of a domain name is protected speech (at least in the US), should the speaker be able to hide their owneship information? That is, would the judge have found the same way if the owner was able to hide their identity?
    [ Reply to This | Parent ]
    Not Quite As Broad As That
    by jberryhill on Saturday February 08 2003, @09:37AM (#11123)
    User #3013 Info

    The appeals court was not ruling on a final decision of the trial court, so the characterization of the "precedent setting" nature of this decision is somewhat overblown in the article above.

    What this court was doing here was ruling on whether to permit a preliminary injunction against the domain name registrant - i.e. they were deciding whether it was permissible to shut this guy up while the trial was in progress, or whether this guy could go on using the domain names while the trial was in progress. The standards for obtaining a preliminary injunction in any case are higher than for obtaining a final decision on the merits.

    Don't get me wrong. I like the decision, but that's no reason to mischaracterize the practical scope of it.
    [ Reply to This | Parent ]


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