Thanks to Mr. Lovell for the cite to the site. So defendant did in fact use
www.compupix.com/ballysucks/ and not ballysucks.com. So this is a typical
case which illustrates the commentary defense to trademark infringement.
It's novel in that it's the Internet but this is not new law. Trademark
law is not as hostile to free speech as others would have you believe.
Now, somebody wrote about this case yesterday referring to it as
ballysucks.com. This is quite obviously not a domain name case. A
defendant's lawyer should certainly cite this case in a ___sucks.com
situation, but this isn't a domain name case. Nevertheless, the poster
used this case to wipo-bash, in that "valuable precedent would be lost" and
that wipo law might vary from this case. OK, it's not a domain name case.
Second, did the poster read this case or did he read a report of this case
somewhere else?
The reason I ask is because I read a news report of this case a couple
months ago which referred to the site as ballysucks.com. News reports of
cases are not reliable. Even if someone had the expertise to categorize
cases (which Mueller isn't) you cannot accurately categorize a case from a
news report. Reporters aren't careful, they quote the lawyers who give only
one side of the case - you just can't use it as a basis for drawing
conclusions.
If the previous poster did read the actual decision, then that person isn't
a very careful reader.
p.s. I can't believe that someone can go before Congress and say that 12%
of ALL tm/dn conflicts are infringements, not revealing that they are
basing it on a study where aircanada.com, britishtelecom.com,
burgerking.co.uk, crateandbarrel.com, delatairlines.com, eddiebauer.com,
harrods.com, indianapolis500.com, micros0ft.com, marksandspencer.com,
mikasa.com, neiman-marcus.com, nypost.com, panaflex.com, sanyo.co.nz,
spice-girls.net, thegap.com, thenewyorker.com, ussteel.com and xerox.co.nz
(among others), are excluded from the definition of infringement!
At 02:48 PM 2/12/99 -0800, you wrote:
>At 04:58 PM 2/12/99 -0500, you wrote:
>>
>>>A federal district court in California has recently opined on a "
>>><famousmarks>sucks.com" cite.
>>>Bally Total Fitness Holding Corp. v. Faber, C.D. Cal., No. CV 98-1278 DDP
>>>(MANx), 12/21/98 ). (sorry, the only URL I have is a BNA subscription site,
>>>but I think the fed courts in CA have their decisions online).
>>
>>
>>I saw a different press story which stated that in Bally v. Faber, cv
>>98-1278, the defendant owned compupix.com and had an interior page, so the
>>url was www.compupix.com/ballysucks/. compupix.com is registered to faber,
>>ballysucks.com is inactive and registered to another entity which,
>>superficially at least, appears to have no connection to faber. there is
>>no decision reprinted on lexis. can anyone lay their hands on the actual
>>decision?
>>
>http://www.compupix.com/ballysucks/decision.htm
>
>See also:
>
>http://www.compupix.com/ballysucks/
>
>which is up and running.
>
>Bill Lovell
>
>
>
>
>
