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Alabama Auto Dealership Should Not Be Allowed to Restrict Speech on the Internet

July 10, 2002

Alabama Auto Dealership Should Not Be Allowed to Restrict Speech on the Internet

First Amendment Protects Web Site Critical of Hoover Business, Public Citizen to Argue in Friday Hearing

WASHINGTON, D.C. – A Web site created by Birmingham consumer Thomas Ballock to air his frustrations with a local auto dealer not only is permissible under trademark law but is speech that should be protected by the First Amendment, Public Citizen concluded in a brief filed July 1 with the United States District Court for the Northern District of Alabama.

In April 2002, the auto dealer, Crown Pontiac-Nissan of Hoover, Alabama, sought and received a preliminary injunction to prevent Ballock from posting criticism about Crown on the Internet. Ballock did not have an attorney representing him at the time. The injunction prohibited Ballock from using Crown’s name in the domain name, meta tags or anywhere in the text of any Internet site. Ballock then retained the Public Citizen Litigation Group to represent him.

Public Citizen has filed a motion to dissolve that injunction on the grounds that Ballock’s use of Crown’s name is permissible under federal trademark law and constitutes the type of consumer commentary that has long been protected by the First Amendment. Amanda Frost, an attorney with Public Citizen, will be in Birmingham July 12 for a hearing on the case.

In its response to Ballock’s motion to dissolve the injunction, Crown has retreated from the arguments on which the court’s injunction relied. Crown’s original complaint was that Ballock’s Web site – www.crownpontiacnissan.com – infringed on its trademark, an untenable argument because it relied on a section of law that requires a trademark to be registered, and Crown had never registered its name. Crown now concedes that Ballock had a right to use Crown’s name in the text of the site, but maintains he could not in the meta tags and domain name. The court injunction, barring all three uses, still holds.

“Crown has realized that Ballock had a right to criticize it by name in the text, and now it’s backpedaling,” Frost said. “Crown is simply doing whatever it can to silence criticisms on the Internet. Ballock should be able to use Crown’s name in the domain name and meta tags, too.”

Crown now claims trademark infringement based on a law that protects non-registered trademarks. However, the law does not apply to the noncommercial use of a mark. Ballock’s site was noncommercial; he built it to educate consumers about Crown and the hazards of mandatory arbitration clauses that many Birmingham auto dealerships require customers to sign, and he did not sell any goods or services on the site.

Furthermore, the First Amendment protects Ballock’s use of Crown’s name in the text, domain name and meta tags of his Web site, Public Citizen’s reply argued. The domain name is similar to the title of a creative work in that it uses Crown’s name to draw attention to the content of the site. The site in no way attempted to confuse users or mislead them to believe that it was Crown’s official site. In fact, Ballock’s Web site included many prominent disclaimers explaining that the site was not sponsored by or affiliated with Crown. Because Ballock used Crown’s name merely to identify it as the subject of his criticism, his Web site is protected by the First Amendment.

Crown also erroneously claims that Ballock violated the Anti-cybersquatting Consumer Protection Act. The anti-cybersquatting law was designed to prevent private citizens from registering domain names of prominent businesses and then offering to sell them to those businesses. Ballock made no attempt to sell the domain name to Crown or to profit in any way from the Web site.

“Crown’s arguments just don’t hold water,” Frost said. “The First Amendment protects Ballock’s speech from these types of attempts to silence criticism.”

Public Citizen became involved in the case because it has a history of defending free speech on the Internet. The hearing will be held 9:30 a.m., July 12, at 1729 5th Ave. North in Birmingham.

Click here to view a copy of the reply brief.