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4th Circuit allows Jerry Falwell critic to keep domain name

By The Associated Press
08.25.05

RICHMOND, Va. — The owner of a Web site critical of the Rev. Jerry Falwell’s views on homosexuality did not violate trademark laws by using a misspelling of the evangelist’s name as the site’s domain name, a federal appeals court ruled yesterday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously reversed a lower court decision and ruled that Christopher Lamparello of New York City can continue to operate his “gripe site” at http://www.fallwell.com.

“The result proves this is still America,” Lamparello said in a telephone interview. “Just because someone who’s a lot more powerful than I am demands that I do something doesn’t mean I should do it.”

Jerry Falwell Ministries can be found online at http://www.falwell.com.

U.S. District Judge Claude Hilton ruled last August that Lamparello’s domain name was nearly identical to the trademark bearing Falwell’s name and could confuse Web surfers, despite a disclaimer noting that it is not affiliated with Falwell. The appeals court disagreed, citing the adversarial nature of the Lamparello’s site.

“After even a quick glance at the content of the website ... no one seeking Reverend Falwell’s guidance would be misled by the domain name http://www.fallwell.com into believing that Reverend Falwell authorized the content of that website,” Judge Diana Gribbon Motz wrote for the court in Lamparello v. Falwell. Judges M. Blane Michael and Robert King joined in the opinion.

“No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions, and his interpretations of the Bible.”

The American Civil Liberties Union, which filed a brief supporting Lamparello, called the ruling a victory for free speech on the Internet.

“Trademark law must not be used to inhibit the freedom of speech in this powerful and important medium,” said Kent Willis, executive director of the ACLU in Virginia.

Falwell’s attorney, John H. Midlen Jr., said he would ask the full appeals court to reconsider the decision.

“We have argued from day one that the likelihood of confusion test relates only to the domain name itself and not to the content of the Web site, which is not known to the Internet surfer until they’ve already been confused by the domain name,” Midlen said. “It is an argument we will be pressing forcefully to the full court.”

The panel considered the “initial interest confusion theory” but ruled that it applies only when someone is trying to profit financially. No such motive existed in this case, the court said.

Lamparello’s attorney, Paul Levy, said the ruling recognizes “the fundamental value of trademark law, which is to protect consumers against confusion in making their purchase decisions.”

Lamparello took Falwell to court after the minister sent letters in October 2001 and June 2003 demanding that he surrender the domain name. According to the appeals court, Lamparello’s site was getting only about 200 “hits” a day to more than 9,000 for Falwell’s site.

“I find it odd that they want to take this site down so aggressively,” Lamparello said of Falwell. “I think it’s because he’s disturbed by the content. Perhaps it does hit a raw nerve.”

Among the headlines on Lamparello’s site are “Proof that fundamentalists selectively quote the Bible” and “What commandment is Dr. Falwell breaking?”

Lamparello is not the first Web master to clash with Falwell over domain names. In 2003, Gary Cohn of Highland Park, Ill., surrendered the domain names jerryfalwell.com and jerryfallwell.com after Falwell threatened to sue him over trademark infringement.

Cohn said he created the sites in response to Falwell’s public comments after the 2001 terrorist attacks. Falwell claimed feminists, homosexuals and abortion-rights advocates provoked God to “lift the curtain” of divine protection on America. Falwell later apologized.


Update
Supreme Court turns away Jerry Falwell's Web case
4th Circuit last year said NYC man was free to operate 'gripe site' about evangelist's views on gays. 04.18.06

Previous
Gay activist can't use Jerry Falwell's name in Web address
Federal judge rules site's domain name — fallwell.com — is 'nearly identical' to pastor's registered trademark and is likely to confuse Web surfers. 08.11.04

Related

Falwell gets rights to Web addresses

Illinois man who set up parody Web sites using pastor's name turns over Internet domains after Jerry Falwell threatens to sue again. 06.20.03

Ga. man sues to continue selling 'Wal-ocaust' T-shirts
Wal-Mart says merchandise comparing company's business practices to Holocaust infringes on its trademark, but Charles Smith argues it's a free-speech issue. 03.09.06

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