In light of Mr. Andy Zody, the president of the Board of Directors of Sheep Creek Water Company making mention of discussions with the company lawyer about this website, I thought it would be a good idea to post some legal background on why this website and domain name are legal and valid.\u00a0 As much as the company might wish otherwise, what I am doing here is perfectly legitimate, and this has been backed up quite thoroughly by judges in court.\u00a0 If the company does decide to take this issue to court, it would waste even more shareholder money than has already been wasted discussing this matter with the company lawyer.<\/p>\n
\nDot Sucks: A Battle Between Trademark Rights and Free Speech<\/h1>\n
…The federal Ninth Circuit in Bosley Medical Institute, Inc. v. Kremer, held that it was not a trademark infringement for a former customer of Bosley to register the domain name Bosleymedical.com and use it to operate a website critical of Bosley. The court reasoned that Kremer\u2019s website was a non-commercial use of the trademark<\/strong>, thus it was not infringement under the applicable federal law. The Court noted that Kremer earned no revenue from the website, no goods or services were sold on the website, and there were no links to any of Bosley\u2019s competitors\u2019 websites<\/strong>. The Ninth Circuit states, \u201cAs a matter of First Amendment law, commercial speech may be regulated in ways that would be impermissible if the same regulation were applied to noncommercial expressions.\u201d However, the Bosley Court also held \u201cAn infringement lawsuit by a trademark owner over a defendant\u2019s unauthorized use of the mark as his domain name does not necessarily impair the defendant\u2019s free speech rights.\u201d<\/p>\n
While the Bosley case was resolved between the parties before there was final court determination on the cybersquatting claim, other courts determined that bad faith was lacking where a domain name matching a trademark was being used to complain about the trademark owner\u2019s products or services.<\/p>\n
In the Sixth Circuit, a consumer prevailed against a landscaping company when she registered its trademark as a domain name and used the website to express her displeasure with the landscape services. Lucas Nursery & Landscaping, Inc. v. Grosse, 359 F.3d 806, 807-08 (6th Cir. 2004)<\/p>\n
In the Fifth Circuit, a home builder was unable to convince a court that its disgruntled customer acted in bad faith when he registered its trademark as a domain name after being unhappy with the home he purchased. The website contained the homeowner\u2019s story of his dispute with the builder, along with a disclaimer at the top of the home page indicating that it was not the home builder\u2019s website<\/strong> TMI, Inc. v. Maxwell, 368 F.3d 433, 435 (5th Cir. 2004).<\/p>\n
As both the Fifth and Sixth Circuit Courts point out, the disgruntled customer who opens a \u201cgripe site\u201d under the domain name of a business that is complained about is not a \u201ccybersquatter\u201d and is not violating acting in bad faith. This is a valid exercise of free speech rights, and not the type of harm that the cyberpiracy laws were designed to protect.<\/strong> Cleary Bldg. Corp. v. David A. Dame, Inc., 674 F. Supp. 2d 1257, 1265 (D. Colo. 2009)<\/p>\n
As noted by the Second Circuit Courts, \u201c[d]omain names \u2024 per se are neither automatically entitled to nor excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.\u201d Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir.2000).<\/p><\/blockquote>\n