A former client who posted a website zapping the hair restorers whose work displeased him was not guilty of trademark infringement for using their name in his URL, the 9th Circuit Court of Appeals ruled April 4.
“[This] is an important victory for free speech on the Internet,” said former Bosley Medical Institute client Michael Kremer’s attorney, Paul Levy, following the ruling. “It makes clear that consumers can use a trade name for a company they want to criticize."
Bosley sued Kremer after the latter built a website five years ago criticizing the outfit after he was unhappy with the way the hair restoration turned out. The company accused him of trademark infringement for the Web address, www.bosleymedical.com, and called the site nothing more than “a bald-faced effort to get even.”
Kremer’s site contains the following disclaimer: “This website contains information critical of the Bosley Medical Institute and is not affiliated with it in any way. The Bosley Medical Institute website is located at www.bosley.com.”
But the 9th Circuit Court held that Kremer didn’t build and post the site to make money or confuse his readers, noting that Kremer included no links to other hair restorers on the site.
The appeals court did, however, restore part of the suit in which Bosley accused Kremer of cybersquatting, of offering to sell the site to the company in return for removing the material criticizing the company.
On the morning after the 9th Circuit Court ruling, the Kremer site included comments referring viewers to links to court documents in a Los Angeles District Attorney’s Office 1996 consumer protection investigation and lawsuit against the company, accusing it of false and misleading advertising and medical malpractice.
Bosley on its own website claims 30 years’ experience, extensive media coverage, and at least one well-known client, television baseball announcer Rex Hudler.
Kremer’s site also refers to the Bosley complaint against him in a home page note: “In December of 2000, the Bosley Medical Institute forced this site to undergo mandatory arbitration proceedings at a forum of their choice in order to prevent the public from viewing this website. The arbitral panel ruled against them, noting that BMI did not contest the accuracy of the site's information. In its decision, the panel concluded that Bosley was trying to squelch free speech and legitimate fair use reporting rights in a practice sometimes called ‘cyber-bullying’.”
