Tuesday, April 05, 2005

Court Lets Patient Criticize Clinic in Web Site

Yahoo! News reported A patient unhappy with the results of a hair-loss treatment can set up a critical Web site containing the name of the medical institute that treated him, a U.S. appeals court ruled on Monday. The dispute revolves around Michael Kremer, who was unhappy with the results he obtained from Bosley Medical, which advertises that it has performed more than 180,000 hair transplant treatments since 1974.

"In a bald-faced effort to get even, Kremer started a Web site at www.BosleyMedical.com, which, to put it mildly, was uncomplimentary of the Bosley Medical Institute," Judge Barry Silverman wrote for the U.S. 9th Circuit Court of Appeals. "The problem is that 'Bosley Medical' is the registered trademark of the Bosley Medical Institute, Inc., which brought suit against Kremer for trademark infringement."

Weighing these issues, the court ruled that a Web site does not infringe trademark if it is not commercial and is used for consumer commentary about the firm. However the 9th Circuit said a lower court should not have dismissed Bosley's claims that Kremer was cybersquatting without conducting a more thorough review of the issue.

It is unlikely they would have said he was cybersquatting, because he was not offering to selling it to the trademark owner, but rather was commenting about his business, but even if they made him give up that domain name, he could have registered bosleymedical.org, or net, or any of a number of other TLDs

USA Today reported the appeals court disagreed [with the claim his use of the name was trademark infringement], saying the Web site was not created to make a profit or to confuse Bosley's customers and potential clients. There were no links on the site to other hair-restoration providers, the court noted.

Kremer's attorney, Paul Levy, said the decision "is an important victory for free speech on the Internet. It makes clear that consumers can use a trade name for a company they want to criticize."

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