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Fuming Homeowner Had First Amendment Right to Establish Web Site Critical of Raintree Homes

Fuming Homeowner Had First Amendment Right to Establish Web Site Critical of Raintree Homes

Man Says Pennsylvania Developer Duped Him Into Paying $143,000 for a $90,000 Home

WASHINGTON, D.C. — A Pennsylvania man who created an angry parody of a developer’s Web site had a First Amendment right to do so and is not violating the company’s trademark, Public Citizen said today in a court filing.

Carl Silverstein, an information technologies director at a computer company, says he was duped by developer Gene Percudani, who runs Raintree Homes Inc., into paying $143,000 for a $90,000 home. Furious, Silverstein created a Web site and registered it under the domain names “www.1800whyrent.org” and “www.1800whyrent.net” — a takeoff of “www.1800whyrent.com,” Raintree’s Web site. On the parody site, which can be accessed by either domain name, Silverstein mimics Raintree’s Web site format, replacing Raintree’s promotional phrases with such things as “We Will Suck You Dry” and “We-Screw-You.”

Raintree, a Pennsylvania company that is facing a class action lawsuit alleging consumer fraud and federal racketeering violations, sued Silverstein and demanded he dismantle his Web site. The developer has alleged that Silverstein is violating trademark law and has defamed the company.

But in a motion filed Monday in the U.S. District Court for the Middle District of Pennsylvania, Public Citizen argued that Silverstein’s Web site is protected by the First Amendment and that it neither violates trademark law nor defames Raintree. Public Citizen, a nonprofit consumer advocacy organization, got involved in the case because of its history of championing First Amendment rights.

To establish a trademark infringement, Raintree must show that Silverstein used Raintree’s name in a misleading way to profit from consumer confusion. However, that has not occurred in this case, said Paul Alan Levy, a Public Citizen attorney. Silverstein’s site is non-commercial, has no advertising and sells no goods. It would be impossible for anyone visiting the site to believe it was created by Raintree, Levy said.

Further, numerous cases indicate that the site is protected under the First Amendment.

“The law is quite clear that consumer commentary is protected under the First Amendment,” Levy said. “Anyone can take out a full-page ad about a company or post criticism on the Web. In fact, the law specifically protects the kind of speech Mr. Silverstein posted.”

Finally, Raintree’s defamation claims ring hollow because the company must show that Silverstein acted with malice and reckless disregard for the truth. (This is what is necessary to prove defamation of a public figure, which Raintree has become after media coverage of consumer complaints about the company.) Raintree’s lawsuit fails to prove defamation, Public Citizen’s brief said.

Public Citizen has successfully defended numerous people who have been sued by companies to dismantle Web sites critical of those companies. The organization also has successfully defended the right of people to anonymously post in chat rooms criticisms of companies. For more information about Public Ciitzen’s work on Internet privacy, visit the Internet Free Speech page.

In the Silverstein case, Public Citizen is working with Harrisburg, Pa., attorneys Robert E. Kelly Jr. and Marc A. Moyer of Duane, Morris & Heckscher LLP.