Declan McCullagh
Tue, 11 Jun 2002 21:23:37 -0700
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Date: Tue, 11 Jun 2002 10:15:12 -0400
From: "Paul Levy" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Subject: Internet critic of auto dealership unfairly censored
My colleague Amanda Frost is representing Thomas Ballock, the former
operator of a website create to criticize the business practices of a
Birmingham-area auto dealer. The dealer obtained a preliminary injunction
against Ballock before he was able to obtain counsel, on the ground that
the use of its name in his domain name and meta tags violated its
trademark; Amanda has just entered an appearance for Ballock and moved to
have the injunction dissolved.
For Immediate Release: Contact: Amanda Frost (202) 588-1000
June 11, 2002 Shannon Little (202) 588-7742
Internet Critic of Auto Dealer Was Unfairly Told to Dismantle Web Site
Court Should Reconsider Sweeping First Amendment Restriction on Criticisms
Posted on the Internet, Public Citizen Says
WASHINGTON, D.C. - The dissatisfied customer of an Alabama auto dealership
should not have been forced to remove all mention of the dealership from a
Web site critical of the dealership, essentially forcing him to dismantle
the site. Also, the court that squelched the man's criticisms should
re-examine its order, Public Citizen argued in a motion filed this week
with the U.S. District Court in Alabama.
In May, the court granted a request by Crown Pontiac-Nissan of Hoover,
Ala., for an injunction preventing its customer, Thomas Ballock, from using
the dealership's name in the domain name or even in the text of his site.
Ballock had great difficulty presenting a defense because he did not have
an attorney at the time of the court hearing on the injunction. Nor had he
read or understood all of the papers submitted by Crown's attorneys. The
court should not have granted the dealership's request because it violated
Ballock's First Amendment rights and because he did not violate trademark
law, Public Citizen said.
"If Crown's position in this case were correct, then consumers are
prohibited from criticizing businesses on the Internet," said Amanda Frost,
an attorney for the Public Citizen Litigation Group who wrote the brief.
"That result would clearly violate consumers' First Amendment rights."
Ballock's dispute with Crown began in February after problems with the
installation of a sunroof in a new car. He created the site
www.crownpontiacnissan.com, where he chronicled his experience with the
dealership and discussed the ways in which arbitration, a private dispute
resolution system, could hurt consumers. He placed prominent disclaimers on
his site so that users would not confuse it with Crown's official Web site,
and included a link to Crown's site for those who had reached his site in
error.
Nonetheless, Crown's attorney's argued that Ballock had violated trademark
laws and the Anti-cybersquatting Consumer Protection Act. However, Crown's
name has not been registered as a trademark, and Crown's arguments produced
no evidence of a loss of consumer sales or disruption of business due to
the site. The anticybersquatting law was designed to prevent private
citizens from buying up prominent domain names and selling them to
corporations. Ballock made no attempt to sell the domain name to Crown.
Following the injunction, Ballock removed his site completely from the
Internet and does not use the name "Crown Pontiac" in any Web site. He has
built a new site, www.hoovernissandealersucks.com, briefly describing his
experiences with an unnamed car dealership and problems with the
arbitration system.
In its brief, Public Citizen argues that the preliminary injunction was a
sweeping restriction that improperly imposes prior restraint on Ballock's
First Amendment rights to consumer commentary. If the court looks carefully
at the case, it will see that Crown is unlikely to be able to show that the
Web site infringed on its trademark or that it was damaged by the site's
existence. Further, there is no evidence that Ballock hoped to gain
financially from the site.
"Crown is trying to keep any criticism of its business off the Web," Frost
said. "At the very least Ballock should be able to name Crown in the text,
if not in the domain name."
Public Citizen is involved in this case because it has a history of
defending free speech on the Internet. A copy of the filing is available on
the Web at http://www.citizen.org/documents/CrownInjunction.pdf.
###
Public Citizen is a nonprofit consumer advocacy organization based in
Washington, D.C. For more information, please visit www.citizen.org.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html
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