Falwell critic can keep domain name

Court reverses ruling that had prohibited the site from operating on a domain bearing a variation of Rev. Jerry Falwell's name.

Anne Broache
Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
3 min read
A Web site with a domain name resembling Rev. Jerry Falwell's can continue to vent about the preacher's anti-gay views, a federal appeals court ruled on Wednesday.

A three-judge panel on the U.S. Court of Appeals for the Fourth Circuit reversed a lower court's ruling, which had prohibited Christopher Lamparello from "maintaining a gripe Web site critical of Jerry Falwell," the appeals court opinion said.

Falwell's attorney, John Midlen, said he was "disappointed and dismayed" at the decision and plans to seek a rehearing, while Lamparello's attorney, Paul Levy, in an e-mail hailed the decision as "a very important Internet free-speech decision, perhaps the most significant of our domain name cases from the past several years."

Lamparello registered Fallwell.com in 1999 after hearing Falwell give an interview containing what he considered to be offensive opinions about homosexuality, according to the appeals court opinion. The front page of the site, Fallwell.com, implores visitors to continue exploring the site "to see why Rev. Falwell is completely wrong about people who are gay or lesbian." Inside, it links to articles intended to dispel what Lamparello deemed untruths about gay people. It also contains disclaimers that contain links to Falwell's official site.

Falwell sent Lamparello letters in October 2001 and June 2003 demanding that the site be taken down and ultimately filed claims of trademark infringement, false designation of origin, unfair competition and cybersquatting. A district court last year enjoined Lamparello from using the domain name and required him to transfer it to Falwell.

But the appeals court viewed the situation in a different light. One of the major factors in trademark cases, the court said, is whether use of a similar name creates a "likelihood of confusion" for those who read it.

In this case, "it was so clear that his Web site did not create any likelihood of confusion about whether Falwell sponsored it," Levy said in an e-mail.

The court agreed. "Lamparello's Web site looks nothing like Reverend Falwell's; indeed, Lamparello has made no attempt to imitate Reverend Falwell's Web site," wrote Judge Diana Motz.

"When dealing with domain names, this means a court must evaluate an allegedly infringing domain name in conjunction with the content of the Web site identified by the domain name," Motz went on.

But the same appeals court in 2001 ruled against the operator of a Web site, then at Peta.org, that parodied the acronym for animal-protection group People for the Ethical Treatment of Animals by renaming it People Eating Tasty Animals. (That site is still accessible, only at a different URL.) The court held that the site could not remain at that domain because it was likely to cause confusion and prevent people from reaching the animal-rights organization's site.

Levy said the recent opinion represents an important shift in thinking about trademarks and domain names. "In some of the early Internet infringement cases, there was some tendency to 'baby' consumers by assuming that Internet users are stupid and that domain names can easily mislead them away from the Web sites of trademark holders," he said.

Midlen said the appeals court erred by failing to focus exclusively on the domain name in question. "We have never alleged or argued or litigated whether or not...the content of his Web site was confusing," he said. "We said all along that he is entitled to say on his Web site whatever he wishes to say...Our basic contention is that the Internet surfer who misspells Dr. Falwell's name in looking for him on the Internet is unwittingly hijacked to the pro-gay site that is operated by Mr. Lamparello, and the public is deceived in that action."

A federal judge in 2003 dismissed another case Falwell brought against the operator of parody sites hosted on Jerryfalwell.com and Jerryfallwell.com.