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[The http://www.shopsatwillowbend.com/ site in question is now
password-protected. The official mall site appears to be
http://www.shopwillowbend.com/ As always, I invite Taubman (the mall owner,
copied above) to reply. --Declan]
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Date: Wed, 14 Nov 2001 18:18:01 -0500
From: "Paul Levy" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Subject: Another internet free speech case
I am writing to call your attention to a brief that Public Citizen just
filed as a friend of the court in a case, now pending in federal court in
Detroit. The case involves Henry Mishkoff, a resident of Dallas, Texas,
who created a web site describing a shopping mall called "Shops at Willow
Bend" that had opened near his home in the Dallas suburb of Plano. He
named his web site, naturally enough, shopsatwillowbend.com. His site was
in operation for two years when suddenly the mall's developer, the Taubman
Company, sent him a demand letter asking him to take down the site and hand
over the domain name. Mishkoff expressed a willingness to discuss this,
but when they kept threatening to sue him, and then actually did sue him,
he was so disgusted that he registered more domain names, such as
taubman.com and shopsatwillowbendsucks.com.
Taubman deliberately sued him in Michigan, presumably in order to make it
hard for Mishkoff to defend himself, even though the law is pretty clear
that they have to go to Texas to file this case (unfortunately, being pro
se, it did not occur to Mishkoff to move to dismiss on this ground until
recently, after he got legal advice from me). Taubman got a preliminary
injunction against the original site, and now it is asking the court to
shut down the "sucks" site which recounts, in a fashion both folksy and
humorous at times, Mishkoff's travails as a pro se defendant in the legal
system at the hands of an attack dog trademark firm. The web site is good
reading in that sense
We have just filed a brief as a friend of the court urging the judge both
that the First Amendment protects Mishkoff's right to use Taubman's names
to identify the subject of his criticism, and that any event Mishkoff's
sucks site does not violate the trademark laws in any respect. We have
also agreed to represent Mishkoff in his appeal from the preliminary
injunction. This issue of the use of trademarks as part of the domain
names for critical web sites has come up in a number of other case, and
Public Citizen has represented several operators of "criticism" sites, many
of which are featured on our web site at
http://www.citizen.org/litigation/briefs/IntFreeSpch/index.cfm
The brief is posted on our web site at
http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=6448.
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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