Nov. 10, 2004
Dissatisfied Home Improvement Customers Have Right to Criticize North Carolina Company on Web, Public Citizen Tells Court
Georgia Residents Launched Web Site After Bad Experience With Siding Installation
WASHINGTON, D.C. – Two dissatisfied customers of a North Carolina siding company have a First Amendment right to criticize the company – and allow others to do so – on a Web site they set up, Public Citizen has told a federal court in North Carolina.
Alan and Linda Townsend launched www.spraysiding.comto air their complaints about Spray On Siding of North Georgia Inc., which performed work on their home in September 2003. The couple created the site after unsuccessful attempts to resolve their issues with the company and Alvis Coatings Inc., which supplied the products used. On the Web site, the Townsends say the company left their house with damage that will cost tens of thousands of dollars to fix.
Alvis sued in September 2004, demanding the court order the Townsends to dismantle the site and relinquish the domain name, plus several similar domain names the Townsends had purchased. The company wants the court to forbid the Townsends from making any public statement about Alvis or its products, services and customers, and it wants the Townsends to pay the company more than $75,000.
The lawsuit, filed in the U.S. District Court for the Western Division of North Carolina, claimed trademark infringement, unfair and deceptive practices, and defamation. Alvis alleged that the Townsends’ site violates the Lanham Act, which governs commercial speech, by infringing on the company’s trademark and confusing users who are looking for Alvis’ site.
In a brief filed today, Public Citizen attorneys David Arkush and Paul Alan Levy argued that the case has no merit and should be dismissed.
First, the suit was filed in the wrong court because the Townsends live in Georgia, and neither they nor their site have anything to do with North Carolina, where the suit was filed, the brief said. Second, a trademark infringement claim must show that the Townsends are using the company’s name for commercial gain. In fact, the site is entirely non-commercial – nothing is sold, no ads are displayed and the site contains no links to any commercial sites.
Further, the Townsends’ site carries a disclaimer saying that the site is not Alvis’ official site. The Townsends even direct visitors to the company’s site, so there can be no confusing the Townsends’ site with Alvis’ site. Finally, the Townsends’ criticisms are protected by the First Amendment, Public Citizen said, and under the Communications Decency Act, the couple can’t be held liable for statements by others posted on their site.
“The company’s arguments fall far short,” Arkush said. “Courts across the country have upheld the right of unhappy customers to air their views on the Internet and to use company names in doing so. The Townsends clearly have a First Amendment right to criticize Alvis on the Web.”
To read Public Citizen’s brief, click here.
Edward G. Connette Jr. of Charlotte, N.C. is participating as counsel in defending the Townsends.