Could it be that the tide is finally turning from draconian trademark rights to a more healthy balance for all?
WASHINGTON, D.C. - A dissatisfied customer of a California hair
restoration company has a right to use the company's name in an Internet
site he established to criticize the company, a federal judge has
decided.
In a ruling issued Monday, U.S. District Judge William Q. Hayes
of the Southern District of California tossed out the lawsuit filed by
Bosley Medical Institute against former customer Michael Kremer, a
California resident. In it, Bosley alleged that Kremer violated
trademark laws by using the company's name in his Web sites,
www.bosleymedical.com and www.bosleymedicalviolations.com.
"This is a tremendous victory and once again affirms that people
have the right to air their views on the Web," said Paul Alan Levy, the
Public Citizen attorney who represented Kremer. "Mr. Kremer has every
right to post his views about Bosley on the Internet for all to see."
Kremer set up the site after becoming dissatisfied with hair
restoration services he paid Bosley Medical to provide to him in 1991.
Bosley Medical is based in California and has additional offices in
Arkansas, Arizona, Colorado, Connecticut, Florida, Georgia, Illinois,
Indiana, Kansas, Louisiana, Massachusetts, Michigan, Minnesota,
Missouri, Nebraska, Nevada, New York, North Carolina, Iowa, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas,
Tennessee, Utah, Virginia, Washington, and the District of Columbia, as
well as British Columbia and Mexico.
In January 2000, Kremer registered www.bosleymedical.com, then
notified the company of his plans, to give it a chance to object. The
company responded by filing a complaint for arbitration with World
Intellectual Property Organization (WIPO), a group in Switzerland.
Meanwhile, Kremer refrained from posting any material on his site.
After the WIPO arbitrator ruled in Kremer's favor and
reprimanded Bosley for attempting to stifle critical speech, Kremer
registered the domain name www.bosleymedicalviolations.com and began to
post complaints about the company.
Bosley then sued Kremer in Illinois on the grounds that one of
its offices was located there. The case was transferred to San Diego
because Kremer could not be sued so far from home.
In the most recent suit, Bosley contended that Kremer was
violating the company's trademark. But to prove that, Bosley had to show
that Kremer was using the company's name for commercial gain. Kremer was
not; Kremer's sites are purely informational and Kremer receives no
income from them, the judge decided. Further, there is no way a visitor
to one of Kremer's sites could mistake it for Bosley's site.
Bosley Medical has been disciplined in the past for a variety of
practices. It was fined $644,724 in 1996 over its medical and
advertising practices, and its medical license was suspended and placed
on probation for five years by the California medical board in 1999.
Bosley also has faced discipline charges in 20 other states. Bosley
currently is facing probation revocation hearings in California.
"For four years, Bosley Medical has relentlessly pursued Mr. Kremer on
what we knew all along were bogus claims," Levy said. "Bosley owes
Kremer a gigantic apology for dragging him through these court
proceedings for so long. We hope that other companies take note of this
case and conclude that going after their customers simply doesn't pay."
Charles Bird of Luce, Forward, Hamilton & Scripps LLP, www.luce.com,
participated as San Diego counsel in defending Kremer.
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Public Citizen is a national, nonprofit consumer advocacy organization
based in Washington, D.C. For more information, please visit
www.citizen.org.