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Court Cannot Bar Criticisms of Nissan Motor on Noncommercial Web Site

March 5, 2003

Court Cannot Bar Criticisms of Nissan Motor on Noncommercial Web Site

District Court Improperly Restricted Content of Site After Advertising Was Removed, Public Citizen Tells Appeals Court

WASHINGTON, D.C. – A California district court’s restrictions on a Web site that has ceased displaying advertisements is a clear infringement on the Web site owner’s First Amendment rights, Public Citizen argued in a brief filed today with the United States Court of Appeals for the Ninth Circuit. The site had become noncommercial because of injunctions issued by the district court.

In a series of rulings in 2002, a federal district judge decided that Uzi Nissan, owner of the Nissan Computer Corporation, did not infringe the trademark of the Nissan auto companies by creating a Web site for his company at the addresses www.nissan.com and www.nissan.net. However, the judge barred Uzi Nissan from posting advertisements for rival auto companies and criticisms of Nissan Motor – as he had been doing – because it diluted the company’s trademark.

But in its friend-of-the-court brief, Public Citizen argued that once the court forbade advertisements, the site became noncommercial, placing it beyond the reach of the federal trademark laws. Noncommercial speech, including Uzi Nissan’s criticisms of the company’s litigation against him in this case, is protected under the First Amendment.

“The district court’s line of reasoning is that Uzi Nissan’s site interfered with Nissan Motor’s commercial activities and therefore should be barred, but once the advertisements were removed, the site became fully noncommercial and therefore was entitled to full free speech protections,” said Paul Alan Levy, an attorney with the Public Citizen Litigation Group who wrote the brief. “The ruling was in improper prior restraint of speech.”

Public Citizen also argued that the court improperly concluded that Uzi Nissan’s use of the Nissan name in the domain name of his site was misuse of a trademark. Courts have ruled numerous times that when a company’s name is used in an Internet domain name, that does not violate the company’s trademark if the speech on the site is noncommercial commentary about that company.

Uzi Nissan, who has used his name in a number of businesses, first registered the Nissan domain name in 1994. This establishes even more strongly his right to the use of the trademark, Public Citizen said.

Public Citizen agreed that, for a brief period, Uzi Nissan tried to profit improperly from the coincidence between his name and the popularity of Nissan automobiles, but it disagreed that the consequence of this misconduct was to lose his right to use the name to criticize the auto maker.

The U.S. Supreme Court’s decision Tuesday in the Victoria’s Secret case, which gave a narrow construction to the federal trademark dilution law, also undermines the district court’s injunction against critical speech. The injunction rests heavily on concern that the critical speech at www.nissan.com will “tarnish” the Nissan trademark, but the Supreme Court questioned whether dilution law even applies to a speaker who “tarnishes” a famous trademark.

Public Citizen has asked the appellate court to require a disclaimer to be placed on Uzi Nissan’s site attesting that it is not connected to the auto company or its site, and to require a link to Nissan Motor’s site, but permitting criticism of the company. Such a ruling would satisfy trademark and First Amendment rules that incursions on speech be as narrow as possible.

Public Citizen became involved in this case because it has a history of defending free speech on the Internet. Click here to view a copy of the brief on the Web.