Arbiters rule parody site can continue
By Michelle Brummitt / The News & Advance
Jun 6, 2002
A parody Web site bearing the name of the Rev. Jerry Falwell will be allowed to continue, an international arbiter of Internet domain names has ruled.
The World Intellectual Property Organization denied Falwell's complaint against Gary Cohn, owner of www.jerryfalwell.com in a decision distributed Thursday.
The Geneva, Switzerland-based arbiters' decision also applies to www.jerryfallwell.com - a link to the site with "Falwell" purposefully misspelled.
"God has lifted his veil of protection over Jerry Falwell ministries," Cohn said Thursday, making light of comments Falwell made after Sept. 11, when Falwell said the attacks were the result of God lifting his curtain of protection from America due to the immoral behavior.
But Falwell took the decision in stride.
"I don't think it's a loss, it's just a necessary step," to take the case to a U.S. federal court, he said.
"I do think it's a slam dunk there. A person's own name, particularly in the case of a minister, cannot be stolen by persons who promote a lifestyle, i.e. the gay and lesbian lifestyle, which the pastor does not agree with," Falwell said.
The Web site does not prominently feature views about homosexuality.
The dispute began last October, when a lawyer representing Falwell sent a cease and desist letter to Cohn. Cohn replied in November calling the letter "cyberbullying."
The WIPO got involved in February, when Falwell filed his complaint. Cohn's lawyers replied in late March.
The three-member panel who ruled in the case denied Falwell's claim that he has a common-law trademark on his name.
"The complainant has failed to show that his name, well known as it is, has been used in a trademark sense as a label of particular goods or services. … There are many well-known ministers, religious figures and academics. Are their sermons or lectures to be considered commercial goods?" the decision reads.
Previous WIPO policy has considered to what degree names should be protected, and ruled that protection should be limited to personal names that have been commercially exploited.
"Complainant is careful to avoid any suggestion that he has exploited his name for ‘materialistic' or ‘commercial' purposes," the decision said.
Falwell's complaint argued that even if the content of the site was parody, the domain name is not.
One panelist agreed.
"The intended impersonation of another can rarely if ever be fair or legitimate and particularly in circumstances where the complainant's name has been taken without adornment and where the purpose behind the impersonation of the person in question is to damage him … the visitor has been misleadingly diverted, and the Complainant has been damaged," the decision states.
But the majority disagreed, stating that the site was a legitimate noncommercial fair use commentary.
The panel suggested that Falwell might have a case under the Anticybersquatting Consumer Protection Act, adding, "Complainant is free to pursue his claims in U.S. courts."
John Midlen, a Maryland-based lawyer representing Falwell, said that a U.S. suit was in the works.
"We are planning on appealing to federal court," within the next two weeks he said.
He said he would use the ACPA, and other statutes to support Falwell's case to claim the Web site.
Cohn invites additional litigation. His lawyer is on staff with Public Citizen, the consumer advocacy group founded by Ralph Nader.
"This is just going to give it more publicity," he said. "It's very clear, I don't sell anything on that Web site and you'd have to be a complete moron to think it's an original Jerry Falwell site. I make something that's worth a lot more than money, and that's that people can come together."
Cohn, an Illinois resident who sells electric lawnmowers for a living, created the site after hearing Falwell's statements about the terrorist attacks. It began as just a place for Cohn and his friends to have fun poking jokes at Falwell. Then he added a message board.
"It became much bigger because then it became a forum. … I don't edit anything. It's not even Falwell anymore. It's a religious message board," Cohn said.