September 1, 2004 1:55 PM PDT

Anti-abortion cybersquatter loses appeal

A federal appeals court on Wednesday said an anti-abortion activist had violated trademark law by registering a slew of domain names, including drinkcoke.org, mycoca-cola.com, mymcdonalds.com, mypepsi.org, and my-washingtonpost.com.

Bill Purdy, who lives in South St. Paul, Minn., had purchased those and other domains, and used them to point visitors to prolife commentary and depictions of aborted and dismembered fetuses. Purdy claims that the companies he targeted promoted abortion.

Purdy had also registered WPNI.org, which is similar to the WPNI.com domain name that many Washington Post-Newsweek employees have as part of their e-mail addresses, and managed to snare some e-mail messages intended for reporters.

The 8th Circuit Court of Appeals concluded that Purdy's collection of Web sites were "confusingly similar" to legitimate ones and therefore likely violated a 1999 law called the Anticybersquatting Consumer Protection Act. The judges said a district court was correct to grant the companies a preliminary injunction that ordered Purdy to hand over his domains.

"Use of a famous mark in this way could be seen as the information superhighway equivalent of posting a large sign bearing a McDonald's logo before a freeway exit for the purpose of diverting unwitting travelers to the site of an antiabortion rally," the judges ruled.

Purdy had argued that the First Amendment protected his free-speech right to criticize the targeted companies in this manner. Purdy said the domain names were used only to spread his message and that he did not have a "bad faith" intent to profit.

The appeals court disagreed. "While Purdy has the right to express his message over the Internet, he has not shown that the First Amendment protects his appropriation of plaintiffs' marks in order to spread his protest message by confusing Internet users into thinking that they are entering one of the plaintiffs' Web sites."

Paul Levy, a lawyer at the nonprofit group Public Citizen who has litigated similar cases, said that because Purdy had included some commercial messages on his Web sites, the appeals court's logic might not apply to noncommercial activists.

"The decision points to a road map that other gripers can follow to make sure that their Web sites are entirely noncommercial," said Levy, who has defended publishers of critical Web sites. "I think that our side can live with this decision."

 

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