• Online Anti-Abortion Rights Activist Found To Be Cybersquatter Despite First Amendment Defense
  • March 16, 2005 | Author: Joseph E. Laska
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • In Coca-Cola Co. v. Purdy, the U.S. Court of Appeals for the Eighth Circuit recently enjoined an anti-abortion rights activist from using Internet domain names confusingly similar to corporate trademarks to promote an anti-abortion rights message. The injunction has become a permanent injunction.

    William S. Purdy ("Purdy") registered numerous domain names, including drinkcoke.org and mywashingtonpost.com, that were similar to those used by well-known corporations such as Coca-Cola, Pepsi, McDonald's and The Washington Post (the "Corporations"). At first, all Mr. Purdy's domain names linked to a website called abortionismurder.com that displayed anti-abortion rights content unrelated to the Corporations. Mr. Purdy eventually linked several of the domain names to a fake Washington Post website featuring the headline "The Washington Post Proclaims 'Abortion Is Murder'" and suggesting that the Corporations supported abortion rights.

    The Corporations unsuccessfully sought to get Mr. Purdy to cease his activities voluntarily. Then the Corporations brought an anti-cybersquatting lawsuit against Mr. Purdy in federal trial court in Minneapolis, MN. On the Corporations' motion, the trial court entered a preliminary injunction prohibiting Mr. Purdy, pending trial, from using any domain name that was confusingly similar to one of the Corporations' protected trademarks and that did not alert Internet users to the critical nature of the fake website.

    Mr. Purdy failed to comply with the preliminary injunction and was held in contempt of court. Indeed, Mr. Purdy registered additional confusing domain names. Mr. Purdy was thus held in contempt of court a second time.

    Mr. Purdy appealed to the Eighth Circuit. Upholding the preliminary injunction, the Eighth Circuit found that Mr. Purdy's domain names were "confusingly similar, if not identical," to the Corporations' trademarks, a requirement of a federal anti-cybersquatting claim. The Court also found that Mr. Purdy exhibited the requisite bad faith, because he had no legitimate rights in the domain names, he offered anti-abortion rights merchandise for sale at the abortionismurder.com website, and he offered to stop using the websites if he was provided editorial space in The Washington Post newspaper.

    The Eighth Circuit rejected Mr. Purdy's First Amendment defense. The Court stated that "[u]se of a famous mark in this way could be seen as the information superhighway equivalent of posting a large sign bearing a McDonald's logo before a freeway exit for the purpose of directing unwitting travelers to the site of an antiabortion rally." Such "speech" was not protected.

    The case returned to the trial court, which entered a permanent injunction against Mr. Purdy.

    Recently, courts have been more inclined to accept free-speech arguments by accused cybersquatters. The Purdy decision seems to have turned on the Court's perception that Mr. Purdy's online activities had a commercial component and were deceptive to consumers.