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Irate Airline Passenger Has First Amendment Right to

Jan. 18, 2001

Irate Airline Passenger Has First Amendment Right to
Tell Story on the Web

Airline Lost Bag and Man Lost His Patience; Web Site Name — www.alitaliasucks.com — Isn’t Trademark Infringement, Public Citizen Says

WASHINGTON, D.C. — An airline passenger irate about his lost luggage not only has a First Amendment right to set up a Web site critical of the airline, but his Web site’s name www.alitaliasucks.com does not violate a 1999 anti-cybersquatting law, Public Citizen has told a federal court.

William Porta, who runs a gift delivery business, set up the site in December after Alitalia lost a bag containing clothing for a friend’s wedding in India. Porta was to be best man. But he attended one black tie event in the two-day old casual clothes he traveled in, and his hosts had to scramble right before their wedding to find suitable attire, he said in an Oct. 26 letter to the airline outlining his complaint. Further, the airline failed to live up to its initial promises for compensation, he said.

So in December, Porta established www.alitaliasucks.com, on which he posted a copy of his letter. The airline then sued Porta in U.S. District Court, the Southern District of New York, alleging that he was violating trademark law and the 1999 Anticybersquatting Consumer Protection Act, passed in response to a rash of people snapping up Internet domain names using trademarked names of companies and organizations.

The airline has asked the court to order Porta to dismantle his site and prohibit him from using the Alitalia name in any Internet domain name or registering such a domain name with any search engines. Because of its long interest in defending people’s First Amendment rights, Public Citizen has intervened in the case and today filed a memorandum on Porta’s behalf.

“The law is quite clear about consumers speech rights,” said Paul Alan Levy of Public Citizen Litigation Group !!!. “Consumer commentary is protected. That means that anyone can take out a full-page ad about the company or post criticism on the Web. In fact, the law specifically protects the information Mr. Porta posted.”

Trademark infringements occur when a companys name is used for profit, which clearly doesn’t apply in this case, Public Citizen’s memo to the court explains. Porta’s site carries no advertising, sells no goods and doesn’t link to any commercial sites. Indeed, Porta’s criticisms would be pointless if he had to omit the name of the company he was criticizing, the memo points out. The action Alitalia is seeking — essentially barring Porta from speaking, printing or broadcasting statements of public concern — can only be justified in extraordinary circumstances, such as a grave threat to the government, Public Citizen argues.

Alitalia’s claim that Porta broke the anti-cybersquatting law is also misguided, Levy said. When they wrote the law, congressional lawmakers specifically noted that they did not intend to enable companies to sue people who establish Web sites for the purpose of commenting on companies.

Alitalia’s lawsuit also claims that Porta’s site could confuse Web surfers seeking Alitalia’s site — an allegation that is absurd, Levy said.

“No consumer looks for a company on the Internet by typing in ‘www.companysucks.com,'” Levy said. “Any consumer visiting Porta’s site would know it wasn’t sponsored by the airline.”

Porta is also being represented by Nina Morrison and John Cuti of Emery Cuti Brinckerhoff & Abady PC in New York City.