November 5, 2001
John H. Midlen, Jr.
Re: Cyberbullying
Dear Mr. Midlen:
I am writing for the twin purpose of acknowledging receipt of two demand
letters, dated October 26, 2001, that you sent to me by overnight delivery
service, and to reject the demands made in those letters.
I am the author of a web site, which as you note uses the domain names
jerryfallwell.com and jerryfalwell.com, that parodies your client, Jerry
Falwell. The parody both reminds the public of your client's hateful remarks
about the causes of the September 11 terrorist attack on the United States, and
evokes his criticism of the hypocritical attitudes that some Christians display
toward compliance with biblical dictates, by suggesting that he himself ignores
a significant biblical dictate. This is a completely non-commercial web site,
which exists for the sole purpose of expressing, through a parody, my opinion
that your client is a jerk.
Confirming my opinion about your apparently humorless client is the letter
that you have sent me on his behalf, trying to suppress my criticism by invoking
completely spurious claims under the trademark, cybersquatting and privacy laws.
Let us be clear. Your client is, as you say, a "world famous television
evangelist", although personally I think infamous or notorious would be a better
way to say it. He is "nationally known . . . and . . . internationally known"
for the very characteristics that are parodied on my web site. He is a public
figure, and as the Supreme Court reminded him the last time he tried to sue over
a parody, he cannot succeed in a claim based on a publication that makes fun of
him unless he proves both falsity and actual malice, under the standards of the
New York Times v. Sullivan standard. You do not assert that anything on my web
site is false. If your client's feelings are hurt as a result of being parodied
on my site, that is something he is going to have to learn to live with. As
Harry Truman used to say, if you can't stand the heat, get out of the kitchen.
Your letter claims that my use of your client's name creates a likelihood
of confusion about the source and origin of my web site. Now I will confess
that your client preys upon gullible people; but it is impossible to believe
that even your client's devoted followers would believe, upon reaching my parody
site that it represents anything other than a parody of your client.
Moreover, it is well established that the use of a domain name denoting the
subject of non-commercial criticism, even if that name is trademarked, is a
completely fair use of the name and is not actionable under the trademark laws,
under the new cybersquatting law, or under the common law of Illinois. I would
call your attention to the case of Northland Insurance Company v. Blaylock, in
which an insurance company sued a disgruntled consumer who used the domain name
northlandinsurance.com as the address to post his complaints about the failure
of the company to pay him what he felt he was owed on a claim for a loss on his
boat. Northland had registered northland.com, which it used the name for its
web site, much as your client registered falwell.com more than three years ago
and has used it to promote his business, which consists of making money from his
religion. The United States District Court made short work of Northland's
argument that Blaylock had violated either the Lanham Act or the Cybersquatting
Act. Moreover, a number of courts have recognized the First Amendment
implications of the use of trademark law to try to quash criticism of the holder
of a trademark.
In short, the domain names are not for sale, they have never been for sale,
and I have no interest in selling them to you or to anybody else. I have no
obligation to give them to you, and I do not intend to give them to you.
Your letter threatens both to invoke the Uniform Dispute Resolution Policy
before the World Intellectual Property Organization, and to sue me in a federal
court. Let me point out to you that if you file a lawsuit against me, that
action alone could preclude the UDRP procedure from going forward, under
paragraph 18 of the procedure. And speaking of hypocrisy, wasn't it Jerry
Falwell who was complaining just last November about the "legions of lawyers"
who were trying to use the courts to "stretch laws in their favor" to overturn
the supposed democratic mandate of the people in Florida? And wasn't it Jerry
Falwell who has been complaining about "radical homosexual lawyers" trying to
find "liberal judges" to advance their personal agendas? It seems your client
isn't above using radical lawyers of his own stripe to advance his own social
agenda by trying to find conservative judges who may cater to him by suppressing
the democratic rights of other people.
Finally, if your client sues me as threatened, his lawsuit will be entirely
frivolous and I intend to ask my attorney to seek an award of attorney fees both
against your client and against his lawyer. I also reserve the right to sue
your client and his lawyer for malicious prosecution. Because I live and work
in Illinois, and there is nothing about my web site that would justify you suing
me anywhere else, I assume that lawyer will be somebody other than yourself, but
I would ask you to advise your successor of the risk that he is undertaking.
Sincerely yours,
Gary Cohn
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