Commerce Versus Commentary: Gripe Sites, Parody, and the First Amendment in Cyberspace

The Global Online Freedom Bill of 2006 emphasizes the importance of freedom of speech on the Internet as a fundamental human right. However, the backbone of the World Wide Web, the Internet domain name system, is a poor example of protecting free speech, particularly in terms of the balance between speech and commercial trademark interests. This is apparent from the manner in which the legislature and the judiciary deal with cases involving Internet gripe sites and parody sites. The lack of a clear consensus on the protection of free speech in these contexts is troubling, and can be found in a number of recent cases involving situations such as use ∗ Professor and Co-Director, Center for Law, Technology, and the Arts, and Associate Director, Frederick K. Cox International Law Center, School of Law, Case Western Reserve University, 11075 East Boulevard, Cleveland, Ohio 44106, USA. E-mail: Jacqueline.Lipton@ case.edu. Fax: (216) 368-2086. The author would like to thank Professors Robert Denicola, Patricia Bellia, Joseph Bauer, Mark Janis, Paul Heald, Bruce Boyden, Ira Nathenson, Andrea Matwyshyn, Elizabeth Rowe, and Michael Madison for comments on earlier drafts of this Article. Thanks are also due to participants at the Works In Progress Intellectual Property Colloquium 2006 at Pittsburgh Law School, October 6–7, 2006, as well as participants at faculty workshops at the Notre Dame Law School, University of Florida Levin College of Law, University of Iowa College of Law, and University of Georgia School of Law during the fall semester of 2006. Any errors or omissions are, of course, my own. Washington University Open Scholarship p 1327 Lipton book pages.doc10/2/2007 1328 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 84:1327 of the peta.org domain name for a parody site on the activities of People for the Ethical Treatment of Animals; use of bosleymedical.com for a gripe site about the practices of the Bosley Medical Institute; and use of a misspelling of the Reverend Jerry Falwell’s last name (fallwell.com) for a website critical of the Reverend’s viewpoints on homosexuality. This Article examines how trademark law has come to trump freedom of expression under the domain name system and makes recommendations for regulatory reform to ensure a better balance of rights in the future. In particular, it suggests the development of presumptions against trademark infringement in cases clearly involving criticism or parody of a trademark holder in cyberspace.