Christopher Lamparello, a gay rights activist, set up his site
in order to criticise Reverend Falwell’s views on homosexuality.
The site also contains clear statements that it is in no way
affiliated to Falwell or his ministries.
Reverend Falwell took objection to Lamparello's use of the name
Fallwell – a satirical misspelling of his own – and sued in 2003.
Such disputes are often characterised as 'typosquatting', but this
case also focused on Lamparello’s supposed violation of Falwell’s
trade mark rights in the name.
Judge Claude Hilton of the Alexandria District Court ruled in
August 2004 that the domain was indeed very similar to Falwell's
registered trade mark in the term "Jerry Falwell" and that it might
confuse web users. However, the judge stayed an injunction awarded
against Lamparello until his appeal to the 4th Circuit Court of
Appeals had been heard.
The American Civil Liberties Union (ACLU) and its Virginia
branch submitted briefs to the 4th Circuit in support of
Lamparello, arguing that he has a free speech right to use the
domain name in that it is descriptive of content, like a film or
book title.
In a ruling issued on Wednesday, the 4th Circuit found in favour
of Lamparello, holding that the domain name fallwell.com does not
violate trade mark law because it is not a confusing use of
Falwell’s trade mark.
“Although Lamparello and Reverend Falwell employ similar marks
online, Lamparello’s website looks nothing like Reverend Falwell’s;
indeed, Lamparello has made no attempt to imitate Reverend
Falwell’s website,” wrote Judge Diana Motz, giving the unanimous
opinion of the Court.
“After even a quick glance at the content of the website at
www.fallwell.com, no one seeking Reverend Falwell’s guidance would
be misled by the domain name – www.fallwell.com – into believing
that Reverend Falwell authorised the content of that website,” she
added.
Falwell had argued that the domain was infringing because the
misspelling would lure browsers onto Lamparello’s site, but the
Court held that it was the context in which the mark was seen that
was important – i.e. the content of the site.
From a cybersquatting point of view the case failed too, said
the Court, because Falwell had failed to show that Lamparello had a
“bad faith intent” to profit from his use of the domain. Instead he
had created a gripe site, designed to criticise Falwell.
“The result proves this is still America,'' Lamparello told the
Associated Press. “Just because someone who's a lot more powerful
than I am demands that I do something doesn't mean I should do
it.''
“This decision is a victory for free speech on the internet,”
said ACLU of Virginia executive director Kent Willis. “The internet
provides unique opportunities for ordinary citizens to speak to a
world-wide audience on matters of public concern. Trade mark law
must not be used to inhibit the freedom of speech in this powerful
and important medium.”
According to the Associated Press, Falwell will appeal.
