ACLU argued that fallwell.com website was protected by First Amendment

The Fourth Circuit Court of Appeals today held that Christopher Lamparello did not violate trademark laws by running a website critical of the Rev. Jerry Falwell under the domain name fallwell.com. The American Civil Liberties Union of Virginia, along with the National ACLU, had filed a friend-of-the court brief in support of Lamparello.
Lamparello’s website is dedicated to criticizing Falwell’s views on homosexuality. At the top of the site’s home page is a disclaimer that states, “T his website is NOT affiliated with Jerry Falwell or his ministry. If you would like to visit Rev. Falwell's website, you may click here. ” Clicking on the word “here” leads to Falwell’s official site at falwell.com.
Falwell sued Lamparello last year in Federal Court in Alexandria. Falwell claimed that Lamparello violated federal trademark law by using a common misspelling of Falwell’s name as a domain name. Judge Claude M. Hilton ruled in favor of Falwell and ordered Lamparello to stop using the fallwell.com domain name. Lamparello appealed to the Fourth Circuit.
The Fourth Circuit reversed the lower court opinion, holding that the domain name fallwell.com does not violate trademark law because it is not a confusing use of Falwell’s trademark. “After even a quick glance at the content of the website at www.fallwell.com, no one seeking Reverend Falwell’s guidance would be misled by the domain name – www.fallwell.com – into believing that Reverend Falwell authorized the content of that website,” wrote the Court.
The ACLU brief argued that Lamparello’s use of the fallwell.com domain name is protected by the First Amendment, likening the domain name to the title of a book or song. The brief further argued that the court must not look at the domain name in isolation, but must consider it in the context of the website itself. The Fourth Circuit agreed, noting that “it has long been established that even when alleged infringers use the very [trade]marks at issue in titles, courts look to the underlying content to determine whether the titles create a likelihood of confusion as to source.”
“This decision is a victory for free speech on the Internet,” said ACLU of Virginia executive director Kent Willis. “The Internet provides unique opportunities for ordinary citizens to speak to a world-wide audience on matters of public concern. Trademark law must not be used to inhibit the freedom of speech in this powerful and important medium.”
Paul Levy, Esq. with Public Citizen in Washington, DC, represented Lamparello. The decision in Lamparello v. Falwell is available on the ACLU of Virginia’s website at: http://www.acluva.org/docket/pleadings/lamparello_opinion.pdf

Contacts: Kent Willis or Rebecca Glenberg at 804/644-8080