Court Should Not Prevent Texan from Criticizing Shopping Mall Developer
Public Citizen Asks Court to Suspend Decision to Silence Online Critic

WASHINGTON, D.C. -- A Michigan district court's decision -- that an Internet user cannot name a company on a Web site that criticizes the company simply because the site is not operated for profit -- is in clear violation of the First Amendment, Public Citizen said in a brief filed today with the U.S. Court of Appeals for the Sixth Circuit. The court should suspend a preliminary injunction shutting down a Web site critical of a developer while it considers an appeal, Public Citizen said.

When the nationwide shopping mall developer Taubman Company announced plans to build a shopping center called "The Shops at Willow Bend" in the Dallas suburb of Plano, computer consultant Henry Mishkoff created a community information site under the domain name "www.shopsatwillowbend.com." The site was not built at the request of Taubman, but as a civic service by Mishkoff. He posted a diagram of the mall and information about its stores, as well as links to the official mall site and store sites.

Two years later, Taubman claimed that the "fan" site violated its trademark and demanded Mishkoff take it down and surrender the domain name. Mishkoff then built a second site under five domain names coupling the word "sucks" with the company's name and the name of its mall, such as "taubmansucks.com" and "willowbendsucks.com." On this site, he posted all of the court filings in the lawsuit and discussed what he saw as the waste of resources that this litigation represented, the abusive tactics used by Taubman's attorney and the bad decisions of the judge. In the meantime, the original site stayed up.

In October 2001, a district court required Mishkoff to take down the fan site while it considered the lawsuit, explaining that because the site was not operated for profit (and hence was noncommercial), Mishkoff would not be harmed by the injunction. Emboldened by that decision, Taubman asked the court to expand the injunction to include the "sucks" site - which the court did in a Dec. 7 injunction - based on the reasoning that Mishkoff was a "proven infringer" on the trademark "Shops at Willow Bend" and therefore had lost his right to use the Taubman name in his criticisms on the Internet.

Rejecting arguments made in an amicus curiae brief filed by Public Citizen, the district court decided to expand the injunction to the "sucks" site, requiring Mishkoff to take down the site. Because Public Citizen explained in its brief that trademark laws apply only to commercial activities, the judge's reasons now include the suspicion of commercial purpose, although the court does not specify how Mishkoff could have benefitted from the site.

"The court's decision is a dangerous step toward restricting non-commercial speech on the Internet," said Paul Levy, an attorney for Public Citizen. "Consumers have every right to criticize a company online. Congress and various courts have protected that right before and should do it again in this case."

Added Mishkoff, "Trademark laws would not prevent me from erecting a highway sign next to the mall announcing that 'Taubman Sucks.' The fact that making this statement on the Internet is so much more affordable does not provide a reason why the trademark laws should restrict my rights there any more than in a sign."

Following the district court's injunctions, Mishkoff took both sites down, although he has created a third site explaining the case in detail, http://www.giffordkrassgrohsprinklesucks.com/.

A copy of Public Citizen's appeal brief is available at http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801. Public Citizen has successfully defended the First Amendment rights of Internet critics in a series of cases. To learn more about this and other free speech cases, go to http://www.citizen.org/litigation/briefs/IntFreeSpch/index.cfm.