UNITED STATES COURT OF APPEALS
THE TAUBMAN COMPANY LIMITED PARTNERSHIP,
WEBFEATS AND HENRY MISHKOFF,
Table of Authorities (not posted in web version)
A. The Irreparable Injury Caused by the Prior Restraint on Defendant's Internet Criticisms of Plaintiff Far Outweighs Any Injury to Plaintiff in Light of the District Court's Finding That the Criticism Is Entirely Truthful.
This appeal arises from two preliminary injunctions against two separate web sites. The first site, posted at www.shopsatwillowbend.com, was a "fan"site where defendant Mishkoff expressed his appreciation for a shopping mall that plaintiff Taubman was developing near Mishkoff's home. The second site, using a series of domain names coupling the Taubman and Shops at Willow Bend names with the word "sucks," such as taubmansucks.com, recounted Mishkoff's experience in defending this lawsuit and expressed his dismay at what he saw as Taubman's abusive litigation tactics and the difficulties that he faced as a pro se defendant. The district court issued a preliminary injunction against the original site on the theory that it would do Mishkoff no harm to be enjoined because he was not making any profit from the site, and then enjoined the second site as well on the ground that, as a "proven infringer" of the "Shops at Willow Bend" mark, Mishkoff had lost the right to use Taubman's name to criticize Taubman on the Internet. Because the latter injunction constitutes a prior restraint in clear violation of the First Amendment, the Court should stay its effectiveness while expediting Mishkoff's appeal.(1)
This motion arises out of a dispute between plaintiff Taubman Company, a Michigan-based developer of shopping malls, and Henry Mishkoff, a resident of Dallas, Texas. After Taubman announced plans to develop a mall named "The Shops at Willow Bend" in the Dallas suburb of Plano, Texas, Mishkoff created a web site about that mall, at which he posted a diagram of the mall and a listing of all the shops in the mall, and also posted links both to the official mall web site and to the web sites of almost every store in the mall. Because the site was about the Shops at Willow Bend, he chose a domain name that reflected his subject, namely, "Shopsatwillowbend.com." Mishkoff's purpose in creating the site was to provide a service to his community by using the Internet to call attention to a new neighborhood amenity. Mishkoff Affidavit, ¶¶ 5-6.
Approximately two years after Mishkoff established the web site, Taubman sued him to force him to take down the site and surrender the site's domain name. In response, Mishkoff registered five additional domain names, incorporating both Taubman's name and the name of its Texas mall, but coupling each name with the word "sucks" taubmansucks.com, willowbendsucks.com, willow bendmallsucks.com, shopsatwillowbendsucks.com and theshopsatwillowbendsucks.com, but placed no content on the Internet using those names. Id. ¶ 7. After these names were created, Taubman sought a preliminary injunction against the maintenance of Mishkoff's original web site about its mall, and against his use of the domain name shopsatwillowbend.com. Docket No. 3.
While the motion was pending, Mishkoff created a new web site, posted using all five "sucks" domain names for the same web site, to report on Taubman's threats against him and the ensuing litigation (for convenience, this new site is identified below as the Taubmansucks site). Mishkoff posted all of the correspondence about his original web site, as well as all papers filed in this litigation, on the new site. Mishkoff used the site to express his disgust at the waste of resources that this litigation represents, as well as to comment on what he considered to be threats and abusive tactics employed by plaintiff's counsel. The new site was entirely non-commercial, in that there was never any attempt to market any goods or services on that site. Mishkoff Affidavit ¶ 7.(2)
On October 11, 2001, the court issued a preliminary injunction against the original site. Its explanation for this ruling consisted of a single sentence: "Because defendants are not operating their website for profit, they are less likely to be harmed by a preliminary injunction." Docket No. 7.
Emboldened by this success, Taubman moved the court to expand its preliminary injunction to include the "sucks" site as well, although that site focused solely on the issues raised in this litigation. Taubman did not argue that there was any likelihood of confusion about whether Taubman sponsored this site. Instead, it argued that, because Mishkoff was guilty of infringement in connection with his original site, the principle followed in some courts, that a proven infringer must stay a "safe distance" away from the infringed marks, required Mishkoff to refrain from further use of any of Taubman's trademarks, even to criticize Taubman's litigation tactics. Taubman also claimed that the sites contained defamatory statements about the litigation and that, because the site ridiculed its lawyers' efforts to procure a settlement of the litigation, the site contained "confidential" information that had to be removed. Accordingly, Taubman sought an expanded preliminary injunction requiring that the "sucks" site itself be taken down, and not simply that Mishkoff refrain from using domain names containing Taubman's trademarks. Docket No. 10.
In response, Mishkoff, now supported by Public Citizen as amicus curiae, argued that the First Amendment protected his right to use Taubman's trademarks to identify the target of his criticisms, and that in any event the trademark laws have no application to non-commercial uses of trademarks such as the "sucks" web site. Indeed, as amicus noted, the court's acknowledgment that the original web site had not been created for purposes of profit supported Mishkoff's defense against the application of the trademark laws to the names of his web sites. Docket No. 28.(3)
The district court rejected these defenses and expanded the preliminary injunction to bar the new web site. Although the pending motions did not seek to modify the preliminary injunction against the original "fan" site, the court began its discussion with a lengthy discussion of reasons supporting that injunction. Docket No. 40, at 10-13. The court acknowledged that the trademark laws do not apply to wholly non-commercial web sites, but it denied that its earlier statement about Mishkoff's site not being run for profit was intended as a finding of fact; rather, the court said, it was simply reciting Mishkoff's position, not accepting it as a basis for its ruling. Id. 12 n.7. In fact, the court indicated that the original web site's temporary notice of Mishkoff's friend's shirt business reflected a potential commercial use, and it was also possible that Mishkoff was trying to inflict some commercial harm on plaintiff, which was sufficient commercial nexus to warrant coverage by the trademark laws. Id. 12-13. The inclusion in Mishkoff's web site of links to the web sites of the stores at plaintiff's mall also had the potential for encouraging viewers to visit the stores' web sites instead of the mall itself, thus harming the mall commercially. Id. 13 n.8.
Turning to the "sucks" site itself, the court rejected plaintiff's arguments that the web site contained false or confidential information. However, it found the possibility of commercial use through the following analysis, id. at 13:
Moreover, the court agreed that the "safe distance" rule justified an expanded preliminary injunction in precisely the terms that plaintiff had submitted in its proposed order, not only barring the domain names coupling plaintiff's marks with the word "sucks," but also requiring Mishkoff to remove the web site itself from the Internet.(4) Id. 14-15.
Mishkoff promptly moved for a stay pending appeal. He pointed out that, under Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the fact that a consumer critic intends to cause commercial injury to the target of his criticism hardly deprives the criticism of First Amendment protection or justifies a prior restraint against such criticism. He also noted that his inclusion of links to stores in his web site could not have shown an effort to injure Taubman commercially by discouraging viewers from coming to the mall, because Taubman's own web site for the mall also included links to individual stores' web sites. E.g. http://shopwillowbend.com/ storeDetails.asp?lBusinessID=3331 (copy attached).
The district court denied the stay pending appeal. It stated that viewers might be confused about whether Taubman itself sponsored the Taubmansucks site "because humor is a common form of advertising." Stay Order at 3. As for the commercial use issue, "The Court is uncertain as to the exact nature of the commercial use of Defendant's websites." Id. The court speculated that "one possible commercial use" would be "if defendants hoped to resell their [original] website," then the "sucks" web site may have been created to increase the price offered. Id. 3-4. The court did not find any such purpose, however, and did not acknowledge that even plaintiff had not argued that defendant was trying to get money for taking down his web sites.(5) In effect, the district court was resting its prior restraint against the "sucks" site on a mere suspicion of commercial purpose, although it did not specify any commercial purpose.
This Court's decision about a stay pending appeal depends on four factors: likelihood of success on appeal; irreparable injury to appellant if a stay is denied; whether issuance of the stay will substantially injure appellee; and the public interest. Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000). As the Court emphasized in Nader, these factors must be balanced, and the balance of hardships is ultimately the most important consideration. Id. 834-835. If the injury to the movant decidedly outweighs the injury to the non-moving party, it is sufficient that the appeal presents serious questions on the merits. Grutter v. Bollinger, 247 F.3d 631, 632-633 (6th Cir. 2001).
The standard of review of a preliminary injunction is for abuse of discretion, but errors of law are reviewed de novo. Moreover, because First Amendment rights are at stake in this case, the lower court's factual findings about the nature of the speech are subject to "an independent examination of the whole record in order to make sure that the [injunction] does not constitute a forbidden intrusion on the field of free expression." Bose Corp. v. Consumers Union, 466 U.S. 485, 499 (1984); Hurley v. Irish-American Gay Group, 515 U.S. 557 , 567 (1995). Accord, Bressler v. Fortune Magazine, 971 F.2d 1226, 1229 (6th Cir. 1992) ("the reviewing court must examine for [itself] the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment protect").
A. The Irreparable Injury Caused by the Prior Restraint on Defendant's Internet Criticisms of Plaintiff Far Outweighs Any Injury to Plaintiff in Light of the District Court's Finding That the Criticism Is Entirely Truthful.
The preliminary injunction against maintenance of the "Taubmansucks" web site should be stayed because it is a prior restraint that is directed at a web site that is devoted solely to the criticism of a private company's litigation tactics and to a court's rulings in that litigation and thus represents core speech that is fully protected by the First Amendment. This Court has been unequivocal in condemning prior restraints absent the most compelling circumstances. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996). Similarly, in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Supreme Court held that an injunction forbidding a community group from distributing leaflets criticizing a local real estate company was an impermissible prior restraint. By the same token, an injunction directed at a web site whose sole purpose is to criticize the litigation activities of a private company and the resulting decisions is also an impermissible prior restraint. Indeed, the denial of First Amendment rights, even for a moment, constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976).
The district court apparently thought that the prospect that the web site might cause Taubman commercial injury transformed the web site into "commercial speech" that was outside the full protection of the First Amendment. Preliminary Injunction Ruling, at 13 and n.9. That ruling was in error. After all, the same was true of the leaflets disseminated about the realtor in Organization for a Better Austin v. Keefe, but the Supreme Court nevertheless held that the injunction was an impermissible prior restraint: "No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants the use of the injunctive power of a court." 402 U.S. at 419. Similarly, in the Bankers Trust case, this Court squarely rejected "private litigants' . . . commercial self-interest" as a basis for a prior restraint, thus overturning a preliminary injunction that had been issued in favor of a company whose private documents had been discussed in a news publication. 78 F.3d at 225.
The district court never acknowledged the prior restraint doctrine or explained how its ruling fit within the narrow class of cases in which a prior restraint can be justified. However, in denying the motion for a stay below, it cited Semco v. Amcast, 52 F.3d 108, 111 (6th Cir. 1995), as stating that "the application of the Lanham Act is strictly limited to commercial speech, as that phrase has been defined in the constitutional jurisprudence of the Supreme Court." Stay Order at 2. In the same vein, the trial judge opined that, because his assumptions about the commercial basis for Mishkoff's speech warranted a finding of a violation of the Lanham Act, Docket No. 40, at 13 and n.9, no First Amendment protections can be invoked. Stay Order at 2.
Semco does not support a ruling that the injunction against the Taubmansucks web site is anything other than an impermissible prior restraint, for several reasons. First, Semco did not involve a preliminary injunction at all. Rather, this Court reversed a summary judgment in favor of Amcast, which made plunger tips and had published an article in a trade magazine that, while describing a new process for manufacturing the tips, had praised its own products (allegedly making false claims in violation of section 43(a) of the Lanham Act) and contained extensive advertising for those products. Moreover, in distinguishing between commercial and non-commercial speech, this Court did not rely on the possible commercial motivations of the defendant, but considered only the contents of the speech at issue, which was "peppered with advertising for Amcast." 52 F.2d at 113. The Court made clear that, if Amcast's article had confined itself to the manufacturing process "without describing Amcast's own products, history, quality standards, safety standards and commitment to customer service," the mere fact that Amcast might have had some commercial motivations for publishing the article would not have made the article commercial speech that was subject to scrutiny under the Lanham Act. Id. In this case, the contents of the Taubmansucks site, which can be viewed on the CD that is filed with this motion, are entirely non-commercial. And, even if the district court's ruminations about possible commercial motives for the creation of the Taubmansucks website had evidentiary support and they do not such motives would not support a preliminary injunction against a web site whose contents are entirely noncommercial.
The findings below show that, compared to the severe and irreparable injury caused by the injunction through suppression of Mishkoff's free speech rights, granting the stay would cause no cognizable injury to Taubman's legitimate interests. The only harm that plaintiff identified in seeking a preliminary injunction was a vague claim that the web site contained "defamatory information" about its litigation activities and "confidential information" about its unsuccessful attempt to settle the case by offering Mishkoff $1000 to take the "Shops" site down. However, the district court flatly rejected those contentions, finding that nothing on the web site was either false or confidential. Docket No. 40, at 10.
Nor did the district court find that Internet viewers would likely be confused about whether Taubman was the sponsor of a web site entitled "Taubmansucks." The court simply ruled, adopting Taubman's argument, that because the first preliminary injunction was based on a likelihood of success in finding that the original web site infringed Taubman's "Shops at Willow Bend" trademark, Mishkoff would be required to keep a "safe distance" away from Taubman's trademarks. Order at 10-11. Whatever the merits of the safe distance rule may be in other contexts, it does not provide any basis a finding here that a stay allowing Mishkoff to continue to make factually accurate criticisms of Taubman would cause irreparable injury to plaintiff. Taubman never argued that there was any likelihood of confusion, and although the district court speculated about possible confusion in its opinion denying the motion for a stay (see infra 11-13), it made no findings of likely confusion and so those speculations also cannot support any finding that plaintiff would be harmed by the stay.
In summary, the irreparable injury that perpetuation of the prior restraint against Mishkoff's criticisms of Taubman would cause far outweighs the injury to Taubman from having its litigation conduct criticized on the Internet. The injury to Mishkoff is compounded by the fact that it currently takes more than a year from the filing of the appellee's brief before oral argument is scheduled. Accordingly, the Court should stay the preliminary injunction against the Taubmansucks web site, and should expedite the appeal by issuing a briefing schedule to commence immediately and setting oral argument as soon as practicable.
The appeal from the preliminary injunction against the Taubmansucks.com web site is likely to succeed on the merits because the ruling below is based on a fundamental misconception about the scope of the trademark laws. A trademark's purpose is to identify the source of goods or services used in commerce. A junior user infringes the trademark when he uses it in a way that creates a likelihood of confusing consumers about the source of goods or services: "[T]he general concept underlying likelihood of confusion is that the public believe that 'the mark's owner sponsored or otherwise approved of the use of the trademark.'" Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1186 (6th Cir. 1988), quoting Carson v. Here's Johnny Portable Toilets, 698 F.2d 831, 834 (6th Cir. 1983). On the other hand, the Lanham Act does not bar "the tarnishment impact that can flow from an unfavorable communicative statement about a product or its maker, using the trademark as an identifier of the product or company." 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 31:148 (4th ed. 1999) (citing Restatement of the Law: Unfair Competition).
The Taubmansucks website uses Taubman's marks to identify the subject of criticism, but presents no likelihood of confusion about source. When a trademark is coupled with a term of derision like "sucks," the person viewing the domain name (and the underlying web site) is being told, not that the sponsor of the site is the trademark owner, but rather that it is a person who criticizes the mark's owner. If Mishkoff had erected a highway sign in Plano, Texas, bearing the words "Taubman Sucks" in ten foot tall letters, trademark law would not prevent that; similarly, trademark law does not prohibit a web site or a domain name using the same phrase.
Indeed, until the decision below, every decision to consider trademark claims about domain names that coupled a trademark with a word of hostility such as "sucks" had held there to be no infringement or other trademark violation. For example, in Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp.2d 1161 (C.D. Cal. 1998), Faber operated a "ballysucks.com" web site that prominently displayed plaintiff's name and logo for the purpose of criticizing Bally for alleged abuse of consumers. The court found no likelihood of confusion because of the plain statement that the page was "unauthorized" and the superimposition of the word "sucks" over Bally's mark. As a result, "The Court finds that the reasonably prudent user would not mistake Faber's site for Bally's official site," id. at 1164, and "no reasonably prudent Internet user would believe that 'Ballysucks.com' is the official Bally site or is sponsored by Bally." Id. at 1165 n.2. Similarly, in Lucent Technologies v. Lucentsucks.com, 95 F. Supp.2d 528 (E.D. Va. 2000), the court found that the defendant domain name was not confusingly similar to the plaintiff's mark. The court embraced the reasoning in Bally and found no chance of confusion because the word "sucks" plainly signaled that the site was critical of the trademark holder, and not complimentary: "[S]ucks has entered the vernacular as a word loaded with criticism . . .. A successful showing that lucentsucks.com is an effective parody and/or a site for critical commentary would seriously undermine the requisite elements for the causes of action at issue in this case." Id. at 535-536 (citation omitted).
In support of its preliminary injunction, the district court cited Planned Parenthood v. Bucci, 42 U.S.P.Q.2d 1430 (S.D.N.Y. 1997), aff'd mem., 152 F.3d 920 (2d Cir. 1998), for the proposition that "[u]sing websites that incorporate Plaintiff's mark to disparage Plaintiff would likely be an unfair commercial use within the scope of the Lanham Act's protection." Docket No. 40, at 14. The Bucci case provides no support for the preliminary injunction in this case. Bucci was an anti-abortion activist who registered the name plannedparenthood.com, used the name for a web site whose opening page read, "Welcome to the PLANNED PARENTHOOD HOME PAGE!", and then showed the image of a book, "The Cost of Abortion," which viewers were urged to purchase throughout the web site. Id. 1432-1433. The web site also promoted speaking engagements featuring the author of the book. Only by following several more links did the reader learn that the book was against abortion and that the site was hostile to Planned Parenthood. Id. 1432. Bucci acknowledged that he was using the domain name to try to lure viewers who thought they would be getting information from Planned Parenthood, id. 1433, and that he hoped to aid sales of the book. Id. 1435. The court emphasized the highly misleading nature of both the domain name and the web page in finding a likelihood of confusion. Consequently, the case provides no support for the preliminary injunction here. As the Court can see by reviewing the Taubmansucks web site on the CD attached to this motion, there is not a whit of such deception in this case.
Nor, for that matter, was the district court correct in basing the preliminary injunction against the Taubmansucks site on the "safe distance" rule, which some circuits have used to construe anti-infringement injunctions broadly to prevent a condemned infringer from evading the injunction through minor changes in its infringing activity. Docket No. 40, at 10-11, 14. Each of the cases cited below involved a commercial competitor who, after being held liable for infringement in a final judgment, attempted to make minor changes in its otherwise infringing goods to evade the purpose of the court's judgment. None of the cases involved defendants who, in reaction to being sued, announced that the trademark owners "suck" and coupled those plaintiffs' trademarks with derogatory words to express their hostile opinions. For the purpose of this motion only, appellant does not challenge the preliminary injunction against the original "shopsatwillowbend" web site. However, the "Taubmansucks" web site did not represent a merely minor modification of the old site; it was a completely new site that contained overt criticism of plaintiff, and no rational viewer could be confused about whether Taubman was the sponsor of that site. Indeed, there was never any finding, even on a preliminary basis, of infringement of the "Taubman" mark, yet the Taubmansucks domain name was included in the preliminary injunction, purportedly under the safe distance rule.
Moreover, in invoking the "safe distance" cases, the district court ignored another fundamental rule of trademark law, namely that, even in the commercial context, an injunction should be no broader than necessary to counteract the infringement that has been found under the Lanham Act. As explained above, the court was wrong to say that the Taubmansucks web site contains commercial speech; it was also wrong in its assumption that, once commercial speech is found, the First Amendment no longer has relevance. To the contrary, First Amendment interests are weighed as a factor in deciding whether a trademark violation should be found, e.g., Anheuser-Busch v. Balducci Publications, 28 F.3d 769, 776 (8th Cir. 1994); and injunctions must be narrowly crafted to avoid needless infringement of free speech. Id. at 778; Better Business Bureau v. Medical Directors, 681 F.2d 397, 404-405 (5th Cir. 1982). "Restrictions imposed on deceptive commercial speech can be no broader than reasonably necessary to prevent the deception." FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 43-44 (D.C. Cir. 1985), citing In re RMJ, 455 U.S. 191, 203 (1982); see also Castrol v. Pennzoil, 987 F.2d 939, 949 (3d Cir. 1993).
Even if the court below correctly found that the original "Shopsatwillowbend" web site infringed plaintiff's trademark, a ban on Mishkoff's critical "Taubmansucks" web site, or on his appending critical words to the trademark in order to express his criticism, was by no means necessary to prevent deception. In denying the motion for a stay in the court below, the district court speculated about the possibility that some people might be confused about whether the Taubmansucks domain names were sponsored by Taubman, on the theory that some companies use humor in their advertising. Docket No. 48, at 3. However, the court did not make any finding of likely confusion, and not only would such a finding not be supported by the record, but Taubman did not even request that finding. To the contrary, Taubman rested its motion for an expanded injunction solely on the "safe distance" doctrine. Docket No. 10, at 1-2; Docket No. 22, at 2. Without a finding of likelihood of confusion, the preliminary injunction cannot be sustained.
Moreover, Congress expressly shielded non-commercial and consumer criticism from the coverage of the Lanham Act because it recognized that the purposes of the trademark laws were not served by preventing the use of trademarks to identify the subjects of criticism. Section 43(c)(4) of the Lanham Act, 15 U.S.C. § 1125(c), provides, "The following shall not be actionable under this section: . . . (B) Noncommercial use of the mark (C) All forms of news reporting and news commentary." (emphasis added). The House Judiciary Committee explained that its purpose was to ensure that non-commercial speech would not be affected:
135 Cong. Rec. H1207, H1217 (daily ed., April 13, 1989) (emphasis added).
The purpose of the statute's noncommercial use exception was to protect "'parody, satire, editorial and other forms of expression that are not part of a commercial transaction.'" Dr. Seuss Enterprises v. Penguin Books USA, 924 F. Supp. 1559, 1574 (S.D. Cal. 1996), aff'd, 109 F.3d 1394 (9th Cir. 1997), quoting Congressional Record statement of Senator Hatch.
Similarly, when Congress enacted a cybersquatting law to address the problem of domain names that abuse the rights of trademark holders, it incorporated that law into the Lanham Act as subsection 43(d), 15 U.S.C. § 1125(d), where it is covered by the exclusion of noncommercial and consumer commentary, which applies to everything in "this section." Indeed, Congress included a savings clause explicitly providing that the cybersquatting law would not override either the First Amendment or section 43(c)(4) of the Lanham Act. Public Law 106-113, Section 3008, 113 Stat. 1501A-551. The sponsors of the cybersquatting law specifically disclaimed any intention to provide a cause of action against persons who registered domain names for the purpose of delivering comment or criticisms of trademark owners by identifying the owners with their marks. See House Report 106-412, 106th Cong. 1st Sess. (1999), at 10. The district court's reasoning thus defies Congress' careful efforts to preserve the rights of consumer critics to register domain names for the purpose of criticism.
Particularly egregious is the district court's adoption of the entire proposed order presented by plaintiff, which forbade not only the "sucks" domain names but also enjoined the entire web site, despite the court's recognition that the site's contents were not actionable as containing either false or confidential information. Nevertheless, when, in the motion to stay the injunction pending appeal, Mishkoff pointed out that his injunction required the removal from the Internet of the web site itself, the trial judge expressed some concern about whether one phrase on the first page of the Taubmansucks web site might be confusing to viewers. Even if that were so (and that page, attached to this motion, shows how unlikely that is) the Court should review the entire web site under the Bose Corp. standard of independent review, which is fully applicable even if the Court deems this a case of commercial speech. Peel v. Attorney Reg. and Disciplinary Com'n, 496 U.S. 91, 108 (1990). The web site, which is viewable on the CD that is filed with this motion, makes it indisputable that this is a web site created by an adversary of Taubman and not by Taubman itself. The district court's order requiring that the entire web site be removed from the Internet is a patent example of judicial overreaching that should be stayed by the Court. In fair ness to plaintiff, while it is deprived of the benefits of its preliminary injunction, the appeal itself is expedited.
The motion for a stay should be granted, and the appeal should be expedited.
Paul Alan Levy
Attorneys for Appellants
January 15, 2002
1. Although Mishkoff is entitled to prevail on his appeal from both injunctions, he seeks a stay only of the second preliminary injunction.
2. After the ShopsatWillowBend site was first posted, Mishkoff added a notice of a shirt-selling business operated by a friend of Mishkoff's. When plaintiff objected to this notice it was removed, and the "Shops" site was wholly non-commercial at the time of the preliminary injunction. Mishkoff Affidavit, ¶ 6.
3. Mishkoff also moved to dismiss for lack of personal jurisdiction. Although this defense, which the trial court rejected, will be raised on appeal as an additional reason to overturn the preliminary injunctions, space does not permit its invocation as a basis for a stay pending appeal.
4. Because Mishkoff complied with this injunction, this Court cannot, as the trial judge did, review the web sites online in deciding this appeal. To preserve this evidence for appeal, Mishkoff copied both of the web sites to a CD and sent it to his counsel, who have duplicated it to give the Court the opportunity to conduct the de novo review required by the Bose standard. Infra at 6.
5. After filing a complaint, Taubman offered to dismiss the case and pay defendant $1000 if he would surrender his domain names and take down his web site. Mishkoff agreed to give up the names and the original site, but when plaintiff added the condition that he keep the settlement entirely confidential, Mishkoff refused, and the talks ended. Docket No. 6, Exhibits L to P.