A case has been decided which further discusses the issue of domain name as
speech.
Archdiocese of St. Louis and Papal Visit 1999 St. Louis vs. Internet
Entertainment Group, case no:99CV27SNL, U.S. District Court for the Eastern
District of Missouri (Feb. 12, 1999) 1999 U.S. Dist. LEXIS 1508. I have
not found a web version (E.D. Miss does not appear to post its opinions)
Defendant established a web site at papalvisit.com and papalvisit1999.com.
The site provided:
"limited information on the upcoming papal visit and St. Louis in general,
they also provided advertising for def.'s adult entertainment websites,
hyperlnks to these other websites and an assortment of off-color stories
and jokes regarding the Pope and the Roman Catholic Church."
Def. raised a Frist Amendment defense:
"It contends that its use of the plaintiffs' marks is protected by the
First Amendment because its websites do nothing more than disseminate
information regarding the papal visit."
. . .
The Court pointed out that:
"While it is true that the expressive content of the defendant's websites
are protected by the First Amendment, this is not the issue before the
Court. The plaintiffs have not sought to eliminate the content of the
def.'s websites, nor to restrain defendant from speech which discusses,
criticizes or even maligns the Pope and/or the Roman Catholic Church . . ."
. . .
"Defendant's use of the plaintiffs' marks is entitled to First Amendment
protection when its use of the marks is part of a communicative message,
not when the marks are used to identify the source of a product, or in this
case, the websites as belonging to or being sponsored by the plaintiffs
[cite to planned parenthood case]."
[discussion of planned parenthood case]:
"[the def. in that case]'s use of plannedparenthood.com as a domain name to
identify his web site is on its face more analogous to source
identification than to a communicative message; in essence, the name
identiifes the web site, which contains defendant's home page."
# # #
If someone learns of a web version of this case, please post the url. I
didn't reprint the entire thing because I didn't have the entire thing in
electronic form.
In any event, this case supports the view that a domain name in the form
[third party trademark].undifferentiated TLD is not protectable speech on
its face, and a tribunal could make such a finding in an expedited
proceeding.
Enhancing the protection of free speech on the net could be achieved by
non-commercial TLDs which helped make a communicative message out of the DN
- [xyz].sucks, [xyz].crit, [xyz].anon, [xyz].speech. In the .com TLD, for
the form [xyz].com where xyz is a third-party trademark, the free speech
defense seems pretty specious in most cases.
