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Dissatisfied Hair Restoration Customer Has Right to Criticize Company on Web, Judge Rules

May 5, 2004

Dissatisfied Hair Restoration Customer Has Right to Criticize Company on Web, Judge Rules

Bosley Medical Institute, Which Has Offices in 32 States and D.C., Loses Trademark Infringement Case

WASHINGTON, D.C. – A dissatisfied customer of a California hair restoration company has a right to use the company’s name in an Internet site he established to criticize the company, a federal judge has decided.

In a ruling issued Monday, U.S. District Judge William Q. Hayes of the Southern District of California tossed out the lawsuit filed by Bosley Medical Institute against former customer Michael Kremer, a California resident.  In it, Bosley alleged that Kremer violated trademark laws by using the company’s name in his Web sites, www.bosleymedical.com and www.bosleymedicalviolations.com.

“This is a tremendous victory and once again affirms that people have the right to air their views on the Web,” said Paul Alan Levy, the Public Citizen attorney who represented Kremer. “Mr. Kremer has every right to post his views about Bosley on the Internet for all to see.”

Kremer set up the site after becoming dissatisfied with hair restoration services he paid Bosley Medical to provide to him in 1991. Bosley Medical is based in California and has additional offices in Arkansas, Arizona, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, North Carolina, Iowa, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Tennessee, Utah, Virginia, Washington, and the District of Columbia, as well as British Columbia and Mexico.

In January 2000, Kremer registered www.bosleymedical.com, then notified the company of his plans, to give it a chance to object. The company responded by filing a complaint for arbitration with World Intellectual Property Organization (WIPO), a group in Switzerland. Meanwhile, Kremer refrained from posting any material on his site.

After the WIPO arbitrator ruled in Kremer’s favor and reprimanded Bosley for attempting to stifle critical speech, Kremer registered the domain name www.bosleymedicalviolations.com and began to post complaints about the company.

Bosley then sued Kremer in Illinois on the grounds that one of its offices was located there. The case was transferred to San Diego because Kremer could not be sued so far from home.

In the most recent suit, Bosley contended that Kremer was violating the company’s trademark. But to prove that, Bosley had to show that Kremer was using the company’s name for commercial gain. Kremer was not; Kremer’s sites are purely informational and Kremer receives no income from them, the judge decided.   Further, there is no way a visitor to one of Kremer’s sites could mistake it for Bosley’s site.

Bosley Medical has been disciplined in the past for a variety of practices. It was fined $644,724 in 1996 over its medical and advertising practices, and its medical license was suspended and placed on probation for five years by the California medical board in 1999. Bosley also has faced discipline charges in 20 other states. Bosley currently is facing probation revocation hearings in California.

“For four years, Bosley Medical has relentlessly pursued Mr. Kremer on what we knew all along were bogus claims,” Levy said. “Bosley owes Kremer a gigantic apology for dragging him through these court proceedings for so long. We hope that other companies take note of this case and conclude that going after their customers simply doesn’t pay.”

Charles Bird of Luce, Forward, Hamilton & Scripps LLP, www.luce.com, participated as San Diego counsel in defending Kremer.