Web site retains rights to parody Falwell

Content Regulation | Feature | June 11, 2002

    NMU         SWITZERLAND         Copyrights & Trademarks         Jun 11, 2002    

Web site retains rights to parody Falwell

  • An international arbiter of Internet disputes said the Rev. Jerry Falwell failed to prove trademark infringement claims against a site bearing his name.

A mediation panel denied Reverend Dr. Jerry Falwell's bid to gain control of Internet domains bearing his name and posting criticism about him.

A panel of the World Intellectual Property Organization, a Switzerland-based arbiter of Internet disputes, ruled 2-to-1 in favor of defendant Gary Cohn in Falwell's suit of "reverse domain name hijacking," a claim blending cybersquatting and copyright infringement elements. Falwell tried to strip the Internet domains jerryfalwell.com and jerryfallwell.com from Cohn.

Cohn, an Illinois resident, used the domains to post criticisms and parodies of Falwell's ministry and messages, especially Falwell's claim that feminists, the ACLU, gays and lesbians helped bring about the events of September 11. Falwell.com includes an animated photo of Falwell inserting a foot in his mouth repeatedly. Falwell later apologized for his comments.

The key issue turned on whether the panel determined that Falwell's name was a common law trademark, since Falwell had not registered his name with the U.S. Patent and Trademark Office. If it had been registered, Cohn could have been liable for copyright infringement. If not, the use of Falwell's name in a parody or criticism is considered a legitimate, noncommercial fair use.

Falwell attempted to prove that his ministry had earned his name common law trademark status, but he failed to meet his burden before the panel.

"This is a victory for First Amendment rights," said lawyer Paul Alan Levy, who represented Cohn on behalf of consumer advocacy group Public Citizen, in a statement. "We are pleased that the panel agreed that Mr. Cohn has a right to use Falwell's name when criticizing him, and has every right to do so on the Internet."

Falwell's attorney John Midlen told the Los Angeles Daily News that he plans to pursue the case promptly in federal court. The WIPO panel's decision also pointed out that Falwell may have remedies under the Anticybersquatting Consumer Protection Act, a law which expressly protects the use of personal names.

The dispute began last October when Cohn received some "cyberbullying" threats in the form of a cease-and- desist letter from Midlen.

"This is a completely non-commercial web site, which exists for the sole purpose of expressing, through a parody, my opinion that your client is a jerk," Cohn wrote in a reply.

This is not the first time Falwell has been embroiled in a First Amendment dispute. Falwell lost his suit against Hustler in 1988 when he sued the magazine over an ad depicting him getting drunk and having sex with his mother in an outhouse. The Supreme Court ruled that Hustler was allowed to parody Falwell with the ad because it was protected free speech concerning a public figure.

(Falwell v. Cohn) -- MFS

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