Sept. 7, 2010

Dissatisfied Patient Has Right to Operate Website Criticizing His Surgeons, Public Citizen Says

Domain Names That Contain Surgeons’ Surnames Do Not Constitute Trademark Violation

WASHINGTON, D.C. – A New Jersey man has the right to maintain websites containing the names of two lasik eye surgeons he aims to criticize, and the surgeons’ attempt to stifle their critic violates the First Amendment, Public Citizen said in a lawsuit filed today. !!!

Dominic Morgan, dissatisfied with his lasik eye surgery, registered the domain names “nevyaslasik.com,” “herbertnevyaslasik.com” and “anitanevyaslasik.com” after his surgeons, Herbert Nevyas and Anita Nevyas-Wallace, supposedly botched the procedure and left him legally blind.

The Nevyases sent a complaint on July 6 to the National Arbitration Forum (NAF) against Morgan, claiming that Morgan’s use of their last names violated trademark laws.

On Aug. 26, the NAF panelist ruled in favor of the Nevyases and ordered that Morgan transfer the domain name.

“The domain names in question do not violate the Nevyases’ rights under trademark laws, and their efforts to obtain the names constitute reverse domain name hijacking,” said Public Citizen attorney Paul Alan Levy, who is representing Morgan in the U.S. District Court for the District of New Jersey. “The Nevyases’ attempts to close the website stifle Morgan’s free speech rights.”

Morgan filed suit against the Nevyases to protect his right to use the domain names. The Nevyases have offices in Marlton, N.J., and Bala Cynwyd in southeastern Pennsylvania.

The Nevyases registered the domain name Nevyas.com and created the website in September 2000, at which time the domain names “nevyaslasik.com,” “herbertnevyaslasik.com” and “anitanevyaslasik.com” were all available and the Nevyases chose not to register them. Morgan did not register those domain names until February 2009.

“None of Morgan’s sites are commercial; they all solely operate to express his views of the surgeons,” Levy said. “And as they are all critical in nature, visitors could not confuse the websites for ones owned by the Nevyases themselves. As such, Morgan is not violating trademark law and has every right to operate these websites.”

In fact, to eliminate confusion, Morgan placed a banner at the top of each website that says, “Why I do not recommend …” with the appropriate name filled in, Levy said, thereby negating arguments of trademark violation.

Morgan also created a web site in 2002 to criticize his surgeons, now online at  www.lasikdecision.com, over which the Nevyases sued him for defamation. That case is still pending.

Frank Corrado of Wildwood, N.J., is Morgan’s local counsel.