"Sucks" Domain Names Permitted by U.S. Court of Appeal

The United States Court of Appeal for the Sixth Circuit reversed a decision of the District Court and dissolved both preliminary injunctions preventing the defendant-appellant, Henry Mishkoff, from using a series of domain names including domain names that criticized the plaintiff-appellee, the Taubman Company. Mishkoff registered the domain name "shopsatwillowbend.com" when he learned that Taubman was building a mall called "The Shops at Willow Bend". The domain name contained information about the mall and a disclaimer that indicated that this site was not the official site of the mall and provided a link to the official site. Mishkoff then registered five additional domain names:

1. taubmansucks.com;
2. shopsatwillowbendsucks.com;
3. theshopsatwillowbendsucks.com;
4. willowbendmallsucks.com; and
5. willowbendsucks.com.

The Court of Appeal held that preventing Mishkoff from using all domain names was inappropriate since Taubman failed to demonstrate a likelihood of success on the merits and because the orders represent a restraint of Miskoff's First Amendment right of freedom of speech under the U.S. Constitution. On the issue of the "sucks" sites, the court held that the sites are an exhibition of free speech and the Lanham Act is not provoked since the First Amendment protects critical commentary if there is no confusion as to source. For a copy of the decision, visit: http://makeashorterlink.com/?X15712493