April 18, 2003
Web Site Mocking Home Developer Can Remain on the Internet
Raintree Homes Drops Lawsuit Against Pennsylvania Man Angered by Company’s Business Practices
WASHINGTON, D.C. – A home developer has given up its attempts to silence a fuming homeowner who had established a parody Web site mocking the company. Raintree Homes, Inc. withdrew its lawsuit Thursday from the U.S. District Court for the Middle District of Pennsylvania rather than pursue its faulty arguments that its trademark had been violated and that it had been defamed.
Carl Silverstein, an information technologies professional, says he was duped by developer Gene Percudani, who runs Raintree, 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.”
Public Citizen, a nonprofit public interest group that has a history of defending free speech on the Internet, represented Silverstein and argued that his Web site is protected by the First Amendment and that it does not violate trademark law.
Companies can claim trademark infringement only if their mark has been used in a misleading way to profit from consumer confusion. This had not occurred in this case – 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 Raintree’s site.
“Raintree’s arguments on trademark violation did not hold water, and numerous cases indicate the First Amendment protects Mr. Silverstein’s online speech,” said Paul Alan Levy, an attorney with the Public Citizen. “The company would have lost this case if it had pursued it, so it was wise to pull out now.”
Raintree had also argued that Silverstein’s site was defamatory. However, Raintree became a public figure after media coverage of a class action lawsuit against the company and other consumer complaints. To show defamation of a public figure, Raintree would have had to prove that Silverstein acted with malice and a reckless disregard for the truth, which it failed to do.
Public Citizen worked on the case with Harrisburg, Pa., attorneys Robert E. Kelly Jr. and Marc A. Moyer of Kelly, Hoffman & Goduto. Click here to view Public Citizen’s orginial brief.