[Ecommerce] Public Citizen online speech issue press releases

[James Love]

-------- Original Message --------
Subject: [PUBCIT_PRESS] Public Citizen press releases
Date: Wed, 5 Mar 2003 17:57:23 -0500
From: Public Citizen Press Office <pcpress@CITIZEN.ORG>

Public Citizen Press Releases
Providing the latest information about Public Citizen activities
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Public Citizen issued the following two press releases, March 5

1. Court Cannot Bar Criticisms of Nissan Motor on Noncommercial Web
Site
2. Jerry Falwell Denied in Second Attempt to Silence Online Critic


Court Cannot Bar Criticisms of Nissan Motor on Noncommercial Web Site

District Court Improperly Restricted Content of Site After Advertising
Was Removed, Public Citizen Tells Appeals Court

WASHINGTON, D.C. - A California district court's restrictions on a Web
site that has ceased displaying advertisements is a clear infringement
on the Web site owner's First Amendment rights, Public Citizen argued in
a brief filed today with the United States Court of Appeals for the
Ninth Circuit. The site had become noncommercial because of injunctions
issued by the district court.

In a series of rulings in 2002, a federal district judge decided that
Uzi Nissan, owner of the Nissan Computer Corporation, did not infringe
the trademark of the Nissan auto companies by creating a Web site for
his company at the addresses www.nissan.com and www.nissan.net. However,
the judge barred Uzi Nissan from posting advertisements for rival auto
companies and criticisms of Nissan Motor - as he had been doing -
because it diluted the company's trademark.

But in its friend-of-the-court brief, Public Citizen argued that once
the court forbade advertisements, the site became noncommercial, placing
it beyond the reach of the federal trademark laws. Noncommercial speech,
including Uzi Nissan's criticisms of the company's litigation against
him in this case, is protected under the First Amendment.

"The district court's line of reasoning is that Uzi Nissan's site
interfered with Nissan Motor's commercial activities and therefore
should be barred, but once the advertisements were removed, the site
became fully noncommercial and therefore was entitled to full free
speech protections," said Paul Alan Levy, an attorney with the Public
Citizen Litigation Group who wrote the brief. "The ruling was in
improper prior restraint of speech."

Public Citizen also argued that the court improperly concluded that Uzi
Nissan's use of the Nissan name in the domain name of his site was
misuse of a trademark. Courts have ruled numerous times that when a
company's name is used in an Internet domain name, that does not violate
the company's trademark if the speech on the site is noncommercial
commentary about that company.

Uzi Nissan, who has used his name in a number of businesses, first
registered the Nissan domain name in 1994. This establishes even more
strongly his right to the use of the trademark, Public Citizen said.

Public Citizen agreed that, for a brief period, Uzi Nissan tried to
profit improperly from the coincidence between his name and the
popularity of Nissan automobiles, but it disagreed that the consequence
of this misconduct was to lose his right to use the name to criticize
the auto maker.

The U.S. Supreme Court's decision Tuesday in the Victoria's Secret
case, which gave a narrow construction to the federal trademark dilution
law, also undermines the district court's injunction against critical
speech. The injunction rests heavily on concern that the critical speech
at www.nissan.com will "tarnish" the Nissan trademark, but the Supreme
Court questioned whether dilution law even applies to a speaker who
"tarnishes" a famous trademark.

Public Citizen has asked the appellate court to require a disclaimer to
be placed on Uzi Nissan's site attesting that it is not connected to the
auto company or its site, and to require a link to Nissan Motor's site,
but permitting criticism of the company. Such a ruling would satisfy
trademark and First Amendment rules that incursions on speech be as
narrow as possible.

Public Citizen became involved in this case because it has a history of
defending free speech on the Internet. A copy of the brief is on the Web
at: http://www.citizen.org/documents/nissanamicus.pdf.

****************************************************
Jerry Falwell Denied in Second Attempt to Silence Online Critic

WASHINGTON, D.C. - Agreeing with Public Citizen's contention that it
had no jurisdiction over the Internet speech rights of an Illinois
resident who built a Web site criticizing Jerry Falwell, a federal court
today dismissed a lawsuit brought by the televangelist in his hometown
of Lynchburg, Virginia.

The decision by United States District Judge Norman Moon marks
Falwell's second loss in a legal attempt to shut down the critic's Web
site, which parodies Falwell and his statements about the responsibility
of gays for the terrorist attacks of Sept. 11, among other things.

The site, at www.jerryfalwell.com and www.jerryfallwell.com, pokes fun
at Falwell's advocacy of Biblical literalism and his penchant for giving
advice. Another page purports to discover a biblical code showing that
Falwell is a false prophet.

After the site went up in 2001, Falwell's attorney demanded that the
site's creator, Illinois resident Gary Cohn, turn over the domain names
to Falwell. Cohn refused. Falwell then filed a complaint against Cohn
with the World Intellectual Property Organization (WIPO), alleging
trademark violations, even though Falwell had never registered his name
as a trademark.   Public Citizen represented Cohn in that proceeding as
well.

After the WIPO rejected Falwell's claims, Falwell sued Cohn in June
2002 in the U.S. District Court's Western District of Virginia, alleging
trademark violations and libel.

Cohn lives in Illinois, is not licensed to do business in Virginia, has
no office or employees there, and owns no property in Virginia. Cohn's
message in no way targets Virginia residents. Registration of domain
names with a Virginia company also is insufficient to establish
jurisdiction, Public Citizen had argued.

"The threat of being sued far from home for purely noncommercial,
political speech would have a serious chilling effect. We are pleased
that the court recognized that it would be unconstitutional for Falwell
to force Cohn to appear in court in Virginia," said Public Citizen
attorney Paul Alan Levy.

Rebecca Glenberg of the ACLU of Virginia also represented Cohn in the
case. For the court's decision, go to
http://www.citizen.org/documents/FalwellDismissalOrder.pdf.
###
Public Citizen is a nonprofit consumer advocacy organization based in
Washington, D.C. For more information, please visit www.citizen.org.

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-- 
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040