Fallwell.com back in the hands of gripe site owner

Fourth Circuit reverses earlier decision of district court which had found in favor of TV evangelist Jerry Falwell.

Apellant Lamparello developed a website at www.fallwell.com that was critical of Reverend Jerry Falwell’s political views. The home page contained a disclaimer stating that the site was not affiliated with Reverend Falwell or his ministry, and provided a link to Reverend Falwell’s site. Lamparello never sold any goods or services from fallwell.com.

Reverend Falwell sent cease and desist letters to Lamparello in 2001 and 2003, demanding that Lamparello stop using fallwell.com. After receiving these letters, Lamparello filed a declaratory judgment action, asking the court to determine that the use of fallwell.com did not infringe on Reverend Falwell’s rights. Reverend Falwell countersued, claiming, among other things, trademark infringement and cybersquatting. The district court sided with Reverend Falwell, and ordered the domain name transferred. Lamparello sought review.

On appeal, the Fourth Circuit reversed. It held that the district court had wrongly found trademark infringement, as there was no likelihood of confusion between the respective sources of website content. The court emphasized that Lamparello’s website in no way resembled Falwell’s, and that Lamparello had created the site only as a forum for criticizing ideas. Most importantly, the parties did not offer similar goods or services. There had been no actual confusion, which was made clear by reports of certain visitors to Lamparello’s site who “quickly realized that Reverend Falwell was not the source of the content therein.”

The court also determined Reverend Falwell had failed to demonstarte that Lamparello had registered the domain name with a bad faith intent to profit. Such a showing is necessary to a claimant’s success under the ACPA, 15 U.S.C. §1125(d). Of particular importance was the fact that Lamparello had used the domain name “for purposes of comment, [and] criticism,” such use constituting a “bona fide noncommercial or fair use” under the ACPA.

The balance of the various “bad faith factors” found at 15 U.S.C. §1125(d)(1)(B)(i) also weighed in favor of Lamparello. Specifically, as noted in the portion of the opinion dealing with trademark infringement, the court found that there was no likelihood of confusion as to the source or affiliation of the website content. Further, Lamparello had never attempted to sell, to Reverend Falwell or anyone else, the rights in the fallwell.com domain name, nor had he engaged in the practice of registering numerous domain names.

The court’s opinion addressed several other issues raised by the parties not necessary for the final determination. For example, the opinion includes a thorough analysis of the initial interest confusion doctrine. Such an analysis was not necessary, as the Fourth Circuit has never adopted the initial interest confusion doctrine. In any event, the case is an interesting and thought-provoking read on a modern issue of trademark law.

For a more thorough analysis, be sure read Professor Eric Goldman’s remarks over at his Technology & Marketing Law Blog.

See also Mark Partridge’s post on the case at his Guiding Rights Blog.

Lamparello v. Falwell et al., No. 04-2011 (4th Cir., August 24, 2005).