8/24. The U.S. Court of Appeals (4thCir) issued its opinion [20 pages in PDF] in Lamparello v. Falwell, a cyber squatting case in which the Court of Appeals reversed the District Court's injunction against the cyber squatter.

This opinion contains a detailed analysis of the law, in the 4th Circuit, of trademark infringement, false designation of origin, initial interest confusion, and cyber squatting under the ACPA, as applied to the use of domain names that are very similar to protected marks, where the purpose of the infringing web site is to criticize (rather than compete with, or divert sales and customers from) the holder of the protected mark.

In this case, the critic (Christopher Lamparello) prevailed over the holder of the mark (Jerry Falwell) on all issues.

Background. Jerry Falwell is a Baptist minister based in Lynchburg, Virginia. He is also widely known nationally through his Jerry Falwell Ministries, the Liberty Channel's television programming, Liberty University, his leadership of the Moral Majority Coalition, and his other past and present activities. Falwell holds the common law trademarks "Jerry Falwell" and "Falwell," and has registered the trademark "Listen America with Jerry Falwell." Jerry Falwell Ministries also has a web site with the URL of www.falwell.com.

Christopher Lamparello is an individual who disagrees with Falwell's interpretation of several Biblical passages in the context of homosexuality. Lamparello published his criticisms of Falwell in a web site that he created. This dispute arose because he used a variation of Falwell's name in his URL. His web site is located at www.fallwell.com.

Lamparello's web site is not commercial in nature, to the extent that he sells nothing through his web site, he carries no advertising, and it is a free access web site. He also attracts few visitors to his web site. Also, he writes in the web site that it is not affiliated with Jerry Falwell.

Falwell wrote to Lamparello demanding that he stop using that domain name. Lamparello did not. A Uniform Domain-Name Dispute Resolution Policy panel ruled in Falwell's favor.

District Court. Lamparello filed a complaint in U.S. District Court (EDVa) against Falwell seeking a declaratory judgment of non-infringement.

Lamparello is represented by a broad team of lawyers from the Public Citizen Litigation Group, the Berkman Center for Internet and Society at Harvard Law School, and the Georgetown University Law Center. The American Civil Liberties Union (ACLU) has also supported him as an amicus curiae.

Falwell filed a counterclaim against Lamparello alleging trademark infringement under 15 U.S.C. § 1114 (2000), false designation of origin under 15 U.S.C. § 1125(a), unfair competition under 15 U.S.C. § 1126 and the common law of the state of Virginia, and cybersquatting under 15 U.S.C. § 1125(d). See, 15 U.S.C. § 1125.

The District Court granted summary judgment for Falwell, enjoined Lamparello from using the domain name, and ordered him to transfer it to Falwell. Lamparello appealed.

Court of Appeals. The Court of Appeals reversed.

First, the Court rejected Falwell's trademark infringement and false designation of origin claims. The elements of both of these claims include the elements of use of the mark in commerce, and likelihood of confusion. The Court concluded that likelihood of confusion was absent. The Court also addressed, but did not base its decision upon, the commerce issue.

Noncommercial Activity. The Court commented that "Trademark law serves the important functions of protecting product identification, providing consumer information, and encouraging the production of quality goods and services". In contrast, trademark law does not protect against the use of language in criticism or expression of opinion.

The Court noted that while some of the provisions in the Lanham Act limit applicability to commercial activity, neither the trademark infringement nor the false designation of origin provisions use the term "noncommercial". The infringement provision references "in connection with the sale, offering for sale, distribution, or advertising of any goods or services", while the false designation of origin provision references "in connection with any goods or services".

The Court wrote that courts have interpreted these clauses to include a wide range of activity, including activity that does not involve sales. However, it left undecided the questions of whether the trademark infringement and false designation of origin are limited to "commercial speech", and just what is "commercial speech".

Likelihood of Confusion. Nevertheless, the Court reversed on the trademark infringement and false designation of origin counts because there was not a likelihood of confusion.

The Court reiterated the 4th Circuit's seven part test: "(a) the strength or distinctiveness of the mark; (b) the similarity of the two marks; (c) the similarity of the goods/services the marks identify; (d) the similarity of the facilities the two parties use in their businesses; (e) the similarity of the advertising used by the two parties; (f) the defendant’s intent; (g) actual confusion."

The Court then applied this test to the present case. "Lamparello’s website looks nothing like Reverend Falwell’s; indeed, Lamparello has made no attempt to imitate Reverend Falwell’s website. Moreover, Reverend Falwell does not even argue that Lamparello's website constitutes advertising or a facility for business, let alone a facility or advertising similar to that of Reverend Falwell. Furthermore, Lamparello clearly created his website intending only to provide a forum to criticize ideas, not to steal customers. Most importantly, Reverend Falwell and Lamparello do not offer similar goods or services. Rather they offer opposing ideas and commentary."

Initial Interest Confusion. On the likelihood of confusion issue, Falwell also argued the initial interest confusion doctrine. The Court of Appeals described this doctrine as new and sporadically applied, and summarized it as follows: "the Lanham Act forbids a competitor from luring potential customers away from a producer by initially passing off its goods as those of the producer’s, even if confusion as to the source of the goods is dispelled by the time any sales are consummated".

The Court of Appeals rejected this argument for two reasons. First, the 4th Circuit has not adopted this doctrine. (The 6th, 7th and 9th Circuits have.) Second, even if the Court were to "endorse the initial interest confusion theory, that theory would not assist Reverend Falwell here because it provides no basis for liability in circumstances such as these. The few appellate courts that have followed the Ninth Circuit and imposed liability under this theory for using marks on the Internet have done so only in cases involving a factor utterly absent here -- one business's use of another’s mark for its own financial gain."

"Profiting financially from initial interest confusion is thus a key element for imposition of liability under this theory." The Court of Appeals added that "This critical element -- use of another firm's mark to capture the markholder’s customers and profits -- simply does not exist when the alleged infringer establishes a gripe site that criticizes the markholder."

Cyber Squatting. The Court of Appeals also rejected Falwell's claim under the Anticybersquatting Consumer Protection Act (ACPA). The ACPA prohibits use of a domain name where the holder registers a domain name that "is identical or confusingly similar to, or dilutive of" a protected mark, and has a "faith intent to profit" from its use. The ACPA provides nine factors, now codified at 15 U.S.C. § 1125(d)(1)(B)(i), that courts should consider in determining whether the holder of the allegedly infringing domain name has acted in bad faith.

The Court of Appeals applied these nine factors, and concluded that Lamparello lacked a bad faith intent to profit.

The Court of Appeals held that, generally, "the use of a mark in a domain name for a gripe site criticizing the markholder does not constitute cybersquatting."

The Court of Appeals relied upon several other cases. See, for example, March 5, 2004 opinion of the U.S. Court of Appeals (6thCir) in Lucas Nursery v. Grosse, which is reported at 359 F.3d 806, and story titled "6th Circuit Rules for Domain Name Registrant Who Published Complaint Web Site" in TLJ Daily E-Mail Alert No. 852, March 9, 2004. See also, the April 21, 2004 opinion of the U.S. Court of Appeals (5thCir) in TMI, Inc. v. Maxwell, which is reported at 368 F.3d 433, and story titled "5th Circuit Rules in Cyber Squatting and Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 883, April 23, 2004.

PETA v. Doughney Distinguished. The Court of Appeals also cited and relied upon its 2001 opinion in People for the Ethical Treatment of Animals v. Doughney, which is reported at 263 F.3d 359. In that case the Court of Appeals affirmed a District Court judgment against a cyber squatter.

Doughney registered the domain name www.peta.org, and operated a web site that parodied a group titled "People for the Ethical Treatment of Animals". He named his web site "People Eating Tasty Animals". See, story titled "4th Circuit Affirms Judgment Against Parody Web Site Operator" in TLJ Daily E-Mail Alert No. 256, August 24, 2001.

In both the present case, and in PETA, individuals registered domain names similar to protected marks, operated web sites that criticized or mocked some other person or viewpoint, but created no confusion as to origin, sold no goods through the web site, and attempted to steal no customers or sales. Yet, the Court of Appeals ruled for one griping cyber squatter (Lamparello), and against the other griping cyber squatter (Doughney).

The Court of Appeals distinguished the two cases by pointing out that Doughney also registered other domain names, and that he had stated that the PETA should try to settle with him.

Perhaps the Court of Appeals has created a lesson here for counsel representing parties who might assert cyber squatting claims. Before filing suit, initiate bad faith settlement negotiations, for the purpose of obtaining a statement from the cyber squatter that he might be willing to settle. Then, file suit under the ACPA, asserting that your opponent's willingness to engage in your bad faith settlement negotiations demonstrates a bad faith intent to profit on his part.

Paul Alan Levy, of the Public Citizen Litigation Group, argued the case for Lamparello. He stated in a release that the 4th Circuit's opinion "is a victory for First Amendment rights on the Internet". However, the Court of Appeals interpreted and applied various statutes codified in Title 15, not the First Amendment.

This case is Christopher Lamparello v. Jerry Falwell, et al., App. Ct. Nos. 04-2011 and 04-2122, appeals from the U.S. District Court for the Eastern District of Virginia, at Alexandria, Judge Claude Hilton, D.C. No. CA-03-1503-A. Judge Motz wrote the opinion of the Court of Appeals, in which Judges King and Michael joined.

8/23. President Bush announced his intent to nominate Clay Lowery to be Deputy Under Secretary of the Treasury (International Affairs), and after Senate confirmation, to designate Lowery Assistant Secretary of the Treasury (International Affairs). Lowery is currently VP for Markets and Sector Assessments at Millennium Challenge Corporation. He was previously Deputy Assistant Secretary for Debt and Development Finance at the Department of Treasury. Before that, he was Director for International Finance for the National Security Council. See, White House release.

8/23. President Bush announced his intent to appoint Charles Allen to be Assistant Secretary for Information Analysis at the Department of Homeland Security (DHS). Allen is currently Special Assistant to the Director of the Central Intelligence Agency (CIA). He has worked at the CIA since 1958. Prior to his appointment as Special Assistant, was Assistant Director of Intelligence for Collection. See, White House release.

8/24. Katherine Addleman was named Associate District Administrator for Enforcement in the Securities and Exchange Commission's (SEC) Fort Worth District Office. See, SEC release.

8/24. The Archivist of the United States, who manages the National Archives and Records Administration, published a notice in the Federal Register announcing the establishment of the Advisory Committee on Electronic Records Archives. This new committee will provide advice related to the planned Electronic Records Archives (ERA). It will be comprised of twenty members appointed by the Archivist. See, Federal Register, August 24, 2005, Vol. 70, No. 163, at Page 49683.

8/22. The Supreme Court denied rehearing in Kelo v. New London, No. 04-108. This is the Takings Clause case. See, Order List [3 pages in PDF] at page 2.

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8/24. The Federal Communications Commission (FCC) Office of Engineering and Technology (OET) released an order [2 pages in PDF] in its proceeding on the state of Massachusetts' attempt to regulate WiFi hotspots at the Boston Logan Airport. The order grants the state a one month delay.

This order extends the deadlines for submitting initial comments (from August 29 to September 28) and for submitting reply comments (from September 13 to October 13).

On July 8, 2005, Continental Airlines filed with the FCC a Petition for a Declaratory Ruling [16 pages in PDF] and supplement [PDF] regarding the Massachusetts Port Authority's (MPA or MassPort) attempt to regulate and extract revenues from airport WiFi hotspots.

The MPA asked for this extension of time on the grounds that it is engaged in settlement negotiations with Continental. However, Continental promptly responded to the FCC that there have been no settlement negotiations. Moreover, the Airports Council International-North America (ACI-NA), which shares the MPA's interests, also asked for an extension, but acknowledged to the FCC that it has not communicated with Continental's counsel.

Thus, the parties have not indicated why the delay was actually sought. One possibility is that since a literal application of the Communications Act and the FCC's Over the Air Reception Devices (OTARD) rules would result in the FCC issuing a declaratory ruling in favor of Continental that would also serve as a precedent that would preclude all state and local government entities from making similar assertions, the state and local government entities now seek time to build political pressure on the FCC, especially in light of the fact that the Congress is currently on recess, and its members and staff widely dispersed.

The MPA stated to the FCC that it is "independent public authority" of the state of Massachusetts, created by an act of the legislature, to own and operate the Logan Airport and other facilities in the Boston area.

Continental installed a WiFi hotspot in its frequent flyer lounge at the Boston Logan International Airport. It provides WiFi access for free.

The MPA has demanded removal of Continental's antenna. The MPA asserted in a letter to Continental (which is attached to Continental's petition) that there is a "potential threat to public safety caused by Continental’s unauthorized and unlawful wireless communications". The MPA asserts that Continental's service creates an radio frequency interference problem.

However, the MPA's action appears to be a thinly disguised effort to regulate WiFi hotspots at airports for the purpose of indirectly collecting revenues from WiFi users. That is, it is an effort to impose a hidden tax on WiFi users. Airport WiFi users make a particularly attractive target for local tax collectors because most will not be residents of the locality, and the tax will be disguised as a fee charged by the airline.

The correspondence attached to Continental's petition reflects that the MPA does not object to WiFi operation at the airport. It provides WiFi service through a third party vendor. Rather, the MPA wants to compel Continental to use its third party vendor's facilities, and to pay its rates, and by implication, pass the costs on to its customers as a hidden tax.

The MPA also complained that some airport users have obtained free WiFi access by positioning themselves just outside of Continental's lounge, thereby decreasing use of the MPA licensed, and fee based, system.

The MPA wrote to Continental that it "may make fixed wireless services available in its Clubroom by making arrangements to route its wireless signals over the existing WiFi backbone which has been installed and is operated by AWG, a third party vendor." The MPA stated that Continental will be charged "for airline use based on the number of enplanements" or on the "hits".

The MPA asserts that it is motivated by public safety and interference concerns. However, its demand that Continental pay to provide WiFi service impeaches its own assertions. Moreover, neither the MPA, the ACI-NA, nor any other party has yet filed anything with the FCC in this proceeding regarding harmful interference that would rebut the argument that its assertions are meritless.

The MPA also asserts that as the owner of the airport, it can control use of WiFi antennas as owner of the property through leasing agreements.

Continental asserts that there is no interference issue, and that even if there were, the FCC has sole jurisdiction over the issue, and the MPA is precluded by the Communications Act and the OTARD rules from attempting to license or exclude WiFi antennas.

However, while the relevant provision of the Communications Act and the OTARD rules may appear to be clear, government entities that have advanced public safety arguments have been quite successful at the FCC recently. The FCC has granted relief sought by public safety entities, even where the statutory authority was unclear, or plainly contrary to the position sought by public safety entities. Two recent examples would be the FCC's August 5, 2005, CALEA order (the text of which has not been released), and the FCC's May 19, 2005, VOIP 911 order

See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005; stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order" in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005; and story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005.

FCC's June 24, 2004 Public Notice. On June 24, 2004, the FCC's OET issued a Public Notice [MS Word]. This Public Notice is DA 04-1844. (The FCC's August 24, 2005 order incorrectly identifies this as DA 04-184.)

This Public Notice pertains to the use of unlicensed devices in multi-tenant environments (MTEs), by which the FCC also means hotels, conference and convention centers, and airports. This Public Notice particularly addresses assertions of radio frequency interference (RFI).

The Public Notice states that the "the FCC has exclusive authority to resolve matters involving radio frequency interference [RFI] when unlicensed devices are being used, regardless of venue." It adds that consumers have the right "under our rules to install and operate customer antennas one meter or less in size apply to the operation of unlicensed equipment, such as Wi-Fi access points -- just as they do to the use of equipment in connection with fixed wireless services licensed by the FCC." And, it states that the "FCC’s Over-the-Air Reception Devices (OTARD) rules apply to unlicensed devices".

In contrast, the MPA asserted (in correspondence attached to Continental's petition) that there is a RFI issue, and that the MPA "does not concede" that the FCC's OTARD rules are lawful.

MPA Motion for Extension of Time. The MPA filed a Motion for Extension of Time [4 pages in PDF] on August 16. It again asserted that its interests are "safety and security". It makes no mention of tax collection.

It also made a brief comparison between this proceeding and the history of commercial uses in the 800 MHz band.

The MPA's motion reveals that it has hired counsel with expertise and experience in federal communications law and administrative procedure. The motion was filed by Christine Gill and Keith McCrickard of the Washington DC office of the law firm of McDermott Will & Emory. Gill has worked on both the 800 MHz interference proceeding, and on MTE matters. Both are partners in firm's Telecommunications Practice Group.

ACI-NA Motion. The Airports Council International-North America (ACI-NA) also filed a Motion for Extension of Filing Deadlines [6 pages in PDF] on August 16. It states that it "represents local, regional and state governing bodies that own and operate the principal airports". It asserted that it needs more time to consult with its members.

The ACI-NA is represented in this proceeding by Matthew Ames of the Washington DC office of the law firm of Miller and Van Eaton.

Continental's Reply. Continental promptly filed a reply [4 pages in PDF] to the motions for delay. It stated that there is not an interference problem, and Continental has "rights under the OTARD rules to operate its own Wi-Fi system". It did not address the collection of revenues.

This comment rebuts the MPA's assertion that an extension is necessary because of settlement negotiations. It wrote that "it is not in discussions with Massport with a view towards settling any dispute it has with Massport on this matter".

Continental is represented by Henry Rivera and Edgar Class of the Washington DC office of the law firm of Vinson & Elkins. Rivera is a former Commissioner of the FCC. Class worked on the 800 MHz proceeding.

Continental wrote that "this matter raises significant public policy issues for the flying public and all airport tenants with regard to the Commission’s Over-the-Air Reception Devices (``OTARD´´) rules and its recently issued Policy Statement regarding preservation and promotion of the interconnected nature of public Internet.

Continental added that "Much more is at stake in this matter than the interpretation of restrictions in a lease agreement and it is strongly in the public interest that the Commission resolve the public policy issues presented and resolve them promptly. Massport believes airport tenants, including but not exclusively airlines, are required to use its Wi-Fi system notwithstanding the OTARD rules and are not allowed to operate their own systems. Massport has even questioned the legality of the OTARD rules. Continental believes it has the right to operate its own Wi-Fi system at Logan and seeks by its petition to the Commission to vindicate its rights under the OTARD rules. Clearly, the Commission will substantially benefit the public, not only Continental and Massport, by resolving the public policy issues presented and Massport’s interpretation of the OTARD rules."

Public Response. The FCC had received well over 2,000 comments as of August 24. Almost all of these are brief comments by individuals. And, the overwhelming majority are identical comments from Continental's customers. The form comment states as follows:

"I am a Continental Airlines frequent flyer and member of its Presidents Club. I support Continental's Petition to the FCC. I want Continental to be able to continue to provide its own wireless service to me and other members at Boston Logan and other airports, which is a free service. I rely on Continental's seamless service wherever I fly. Thank you for ensuring the right of the public to use the wireless service of its choice."

FCC staff sometimes denigrate form comments and commenters. However, Commissioners sometimes cite these as proof of widespread public concern, as for example, in the FCC's proceedings on media ownership rules.

See also, story titled "FCC Seeks Comments of Massachusetts Port Authority's Attempt to Regulate Airport WiFi Hotspots" in TLJ Daily E-Mail Alert No. 1,186, August 2, 2005.

The FCC's August 23, 2005, order extending comment deadlines is DA 05-2335 in ET Docket No. 05-247.

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

Deadline to submit initial comments to the Interim Chief Copyright Royalty Judge in response to the request for further comments regarding rules for the delivery and format of records of use of sound recordings for statutory licenses under 17 U.S.C. § 112 and 17 U.S.C. §114. The Interim Chief Copyright Royalty Judge, on behalf of the Copyright Royalty Board, issued the notice of proposed rulemaking (NPRM) on April 27, 2005. The Board has received comments, which reflected sharp divisions among the parties. It now poses further questions. See, notice in the Federal Register, Vol. 70, No. 143, at Pages 43364 - 43368.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] requesting comments on Continental Airlines' Petition for a Declaratory Ruling regarding the state Massachusetts' attempt to regulate Wi-Fi hotspots. Continental has installed a Wi-Fi hotspot for internet access and telecommunications at its frequent flyer lounge at Boston Logan Airport (Logan). An issue is whether the demands of the Massachusetts Port Authority for removal of the antenna are prohibited under the FCC's Over the Air Reception Devices (OTARD) rules. This public notice is DA 05-2213 in ET Docket No. 05-247.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU-D's meetings of Study Group 1 and Study Group 2, which will take place in September, Geneva, on September 6-9 and 12-15, 2005. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: Room 2533A, State Department.

1:30 - 3:00 PM. The Federal Communications Commission's (FCC) Informal Working Group 2: Satellite Services and HAPS will meet. See, FCC notice [PDF]. Location: Leventhal Senter & Lerman, 7th Floor Conference Room, 2000 K Street, NW.

Effective date of the Federal Communications Commission's (FCC) VOIP service disruption order. See, the order contained in the FCC's document titled "Public Notice' [PDF], numbered DA 05-2085, and released on July 26, 2005. It requires, among other things, that every interconnected voice over internet protocol (VOIP) service provider must send every one of its subscribers an FCC mandated statement regarding E911, and that every interconnected VOIP service provider must send to every one of its customers the FCC mandated VOIP warning stickers. This order further requires that every interconnected VOIP service provider obtain acknowledgement from every one of its subscribers, and that it "disconnect, no later than August 30, 2005, all subscribers from whom it has not received such acknowledgements".

Deadline for the public to submit written comments to the House Ways and Means Committee regarding HR 3376, the "Tax Technical Corrections Act of 2005". See, notice.

Compliance date of the Federal Communications Commission (FCC) final rule that extends and modifies the FCC Form 477 local competition and broadband data gathering program. See, notice in the Federal Register, December 29, 2004, Vol. 69, No. 249, at Pages 77912 - 77938. The FCC's report and order is FCC 04-266 in WC Docket No. 04-141.

The mandatory electronic filing via the Cable Operations and Licensing System (COALS) for FCC Forms 321, Aeronautical Frequency Notification, will commence. See, FCC Public Notice DA 05-270, and notice in the Federal Register, February 23, 2005, Vol. 70, No. 35, at Page 8811.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its public notice [37 pages in PDF] regarding its plan to review rules adopted by the FCC in 1993, 1994 and 1995, pursuant to the Regulatory Flexibility Act of 1980, which is codified at 5 U.S.C. § 610. This public notice lists the rules to be reviewed. This public notice, which is dated May 31, 2005, is numbered DA-05-1524. See also, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33416 - 33426.

Deadline to submit to the U.S. Trade Representative (USTR) requests to testify at the USTR's September 14, 2005 public hearing on the People's Republic of China's compliance with its World Trade Organization (WTO) commitments. See, notice in the Federal Register, August 3, 2005, Vol. 70, No. 148, at Pages 44714 - 44715.

EXTENDED FROM AUGUST 22. Extended deadline to submit initial comments to the Copyright Office regarding its first report to the Congress required by the Satellite Home Viewer Extension and Reauthorization Act of 2004. See, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39343 - 39345. See also, notice extending deadlines in the Federal Register, August 15, 2005, Vol. 70, No. 156, at Page 47857.