Surprise Domain Name Decision [5:06 pm]
Anyone who has thought about developing a Web site to gripe about a company owes Michelle Grosse some thanks.
The U.S. 6th Circuit Court of Appeals in Cincinnati ruled Friday that the Canton woman did not violate the law when she used the name of Lucas Nursery and Landscaping Inc. for a Web site she created to complain about the Canton nursery.
The opinion: Lucas Nursery and Landscaping, Inc. v. Michelle Grosse [pdf]
The paradigmatic harm that the ACPA was enacted to eradicate — the practice of cybersquatters registering several hundred domain names in an effort to sell them to the legitimate owners of the mark — is simply not present in any of Grosse’s actions. In its report on the ACPA, the Senate Judiciary Committee distilled the crucial elements of bad faith to mean an “intent to trade on the goodwill of another’s mark.”
[...] None of these factors militates against Grosse. There is no dispute that Lucas Nursery did not have an online location, and hence Grosse’s creation of a web site to complain about Lucas Nursery’s services could not have been intended “to divert consumers from the mark owners’s online location.” Nor is there any evidence that Grosse ever sought to mislead consumers with regard to the site’s sponsorship. The web site explicitly stated that the site was established by Grosse for the purposes of relaying her experience with Lucas Nursery. Moreover, Grosse never offered to sell the site to Lucas Nursery. She also did not provide misleading contact information when she registered the domain name. Finally, she has not acquired any additional domain names, which would be indicative of either an intent to sell such names to those entities whose trademarks were identical or similar, or exploit them for other uses.
[...] [S]he does not fall within the factor that we consider central to a finding of bad faith. She did not register multiple web sites; she only registered one. Further, it is not clear to this Court that the presence of simply one factor that indicates a bad faith intent to profit, without more, can satisfy an imposition of liability within the meaning of the ACPA. The role of the reviewing court is not simply to add factors and place them in particular categories, without making some sense of what motivates the conduct at issue. The factors are given to courts as a guide, not as a substitute for careful thinking about whether the conduct at issue is motivated by a bad faith intent to profit. Perhaps most important to our conclusion are, Grosse’s actions, which seem to have been undertaken in the spirit of informing fellow consumers about the practices of a landscaping company that she believed had performed inferior work on her yard. One of the ACPA’s main objectives is the protection of consumers from slick internet peddlers who trade on the names and reputations of established brands. The practice of informing fellow consumers of one’s experience with a particular service provider is surely not inconsistent with this ideal.