4th Circuit's decision in Lamparello
In a decision on an appeal aided by the Berkman Center Clinical Program in Cyberlaw, the United States Court of Appeals for the Fourth Circuit on Wednesday overturned a federal trial court decision requiring the operator of a “gripe site” to forfeit the domain name of the site to the party the site was set up to criticize. Plaintiff Christopher Lamparello set up a web site, www.fallwell.com, to criticize the Reverend Jerry Falwell’s views on homosexuality and to offer an alternative biblical analysis. In a significant victory for free speech on the Internet, the Court of Appeals’ held that Lamparello’s web site did not violate either federal trademark law or the federal anti-cybersquatting statute.
The court agreed with the position urged by the Berkman amicus brief that comment and criticism, such as that featured on Lamparello’s site, was a paradigmatic “bona fide noncommercial or fair use” and thus fell outside the prohibitions of the ACPA, the anti-cybersquatting statute. While the court did not reach the issue of whether federal trademark infringement law reaches only commercial speech, as the Berkman brief had argued, it did find that there was no likelihood that visitors to Lamparello’s web site would be confused into believing that Reverend Falwell actually sponsored the site. And, in a decision with potentially far-reaching implications for similar sites, the court went on to reject Falwell’s argument that the “initial interest confusion” theory of trademark law was applicable to “gripe sites” such as Lamparello’s. To the contrary, as, the Berkman amicus brief had urged and the court explained, the “critical element — use of another firm’s mark to capture the markholder’s customers and profits — simply does not exist when the alleged infringer establishes a gripe site that criticizes the markholder.”
"The Lamparello decision highlights the real-world impact that Harvard Law School students can have through active participation in the clinical programs," said John Palfrey. "In the field of Internet law, new technologies and new court decisions change the law dramatically each year. We're very proud of the work of the students and the first-rate clinical team at the Berkman Center in helping to shape the emerging law of the Internet."
Harvard Law School clinical students Eric Priest and Ari Waldman, together with Berkman Clinical Program co-directors Bruce Keller and Phil Malone and Georgetown law professor Rebecca Tushnet, authored the amicus brief on behalf of twelve teachers of Intellectual Property law from law schools across the United States.
The court agreed with the position urged by the Berkman amicus brief that comment and criticism, such as that featured on Lamparello’s site, was a paradigmatic “bona fide noncommercial or fair use” and thus fell outside the prohibitions of the ACPA, the anti-cybersquatting statute. While the court did not reach the issue of whether federal trademark infringement law reaches only commercial speech, as the Berkman brief had argued, it did find that there was no likelihood that visitors to Lamparello’s web site would be confused into believing that Reverend Falwell actually sponsored the site. And, in a decision with potentially far-reaching implications for similar sites, the court went on to reject Falwell’s argument that the “initial interest confusion” theory of trademark law was applicable to “gripe sites” such as Lamparello’s. To the contrary, as, the Berkman amicus brief had urged and the court explained, the “critical element — use of another firm’s mark to capture the markholder’s customers and profits — simply does not exist when the alleged infringer establishes a gripe site that criticizes the markholder.”
"The Lamparello decision highlights the real-world impact that Harvard Law School students can have through active participation in the clinical programs," said John Palfrey. "In the field of Internet law, new technologies and new court decisions change the law dramatically each year. We're very proud of the work of the students and the first-rate clinical team at the Berkman Center in helping to shape the emerging law of the Internet."
Harvard Law School clinical students Eric Priest and Ari Waldman, together with Berkman Clinical Program co-directors Bruce Keller and Phil Malone and Georgetown law professor Rebecca Tushnet, authored the amicus brief on behalf of twelve teachers of Intellectual Property law from law schools across the United States.