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Dissatisfied Hair Restoration Patient Has Right

Aug. 22, 2001

Dissatisfied Hair Restoration Patient Has Right
to Criticize Company

Two Web Sites Critical of Bosley Medical Are Subject of Lawsuit;
Critics Have a Right to Free Speech on the Internet, Public Citizen Says

WASHINGTON, D.C. – A dissatisfied former customer of a California company that specializes in cosmetic surgery for baldness has a right to set up a Web site critical of the company and use the company’s name in his domain name, Public Citizen has told a federal court.

Michael Kremer, a self-employed resident of California, set up the site after becoming dissatisfied with hair restoration services he paid Bosley Medical to provide to him in 1991. Kremer had seen several accounts in the media regarding other complaints about Bosley, including a piece on “Dateline NBC” and an article in U.S. News and World Report, and based the information on his site on these and other accounts.

On Jan. 7, 2000, Kremer registered a Web address, “www.bosleymedical.com,” then wrote to the company, notifying them of his plans and giving them the opportunity to make any objections in advance. The only response from the company was a complaint for arbitration filed with World Intellectual Property Organization (WIPO), a group in Switzerland that is typically favorable to companies when ruling on Internet trademark issues. 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, on which he posted complaints against the company. He registered a second domain name because he had experienced technical difficulties using the first name. Both sites are now functional.

After the arbitration, the company filed suit against Kremer in the United States District Court for the Northern District of Illinois, accusing him of libel and trademark infringement. The company has asked the federal court to force Kremer to take down both his Web sites and remove all commentary critical of the company.

“Bosley Medical’s intent is clear in this case. It wants to stifle critical consumer commentary,” said Paul Alan Levy, an attorney with Public Citizen Litigation Group, who represents Kremer. “Bosley’s lawsuit amounts to cyber-bullying, an attempt to intimidate Mr. Kremer into silencing himself.”

As Kremer’s affidavit indicates, Bosley has never denied the factual accuracy of the media and law enforcement reports upon which Kremer based his Web sites. Further, the company 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 then placed on probation for five years by the California medical board in 1999. Bosley also has faced discipline charges in 20 other states.

Although Bosley asserts that Kremer’s sites represent a trademark infringement, Levy says that Kremer’s sites are purely informational and that Kremer receives no income from them.

“These sites are constructed and worded in a way that no visitor could possibly mistake them as Bosley’s own,” Levy added.

Public Citizen, which has long had an interest in free speech issues on the Internet, agreed to intervene in the case on Kremer’s behalf and today filed a motion to dismiss the suit. The group has previously been involved with several other cases involving the First Amendment and the Internet, including one involving critics of the corporate takeover in Pacifica Radio in May.

“Lawsuits should not be used as intimidation tactics to chill free speech on the Internet,” Levy said. “It seems that recent court precedent hasn’t taught companies the lesson that if they bring these lawsuits, they will lose.”

Bosley Medical operates in Arizona, California, Colorado, Florida, Georgia, Illinois, Indiana, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Tennessee, Washington, and the District of Columbia.