February 09, 2005
Coca-Cola v. Purdy Permanent Injunction
The court issued a permanent injunction in the long-running Coca-Cola v. Purdy case. If you’re not familiar with Purdy, he is an anti-abortion activist. He targeted various publishers that he believed were pro-choice, plus a number of other companies that he thought should take an anti-abortion stance. Here’s one article recapping some of the story. He then registered various domain names including the trademarks of his targets, and then he redirected the domain names to anti-abortion websites (in some cases, causing web browsers to unexpectedly encounter some uncomfortable photos at the anti-abortion sites).
Not surprisingly, the court was sympathetic to the trademark owners. Even though Purdy has a political point to make, and many courts will consider his gripe rights, his techniques have been tough for the court to accept—-especially after he registered yet more domain names following an initial injunction.
Unfortunately, the new ruling illustrates why bad facts make bad law. Consider, for example, how the court resolves some factors of the likelihood of confusion test:
· Competitive proximity. An anti-abortion activist “competing” with major newspaper publishers and some big branded food companies like Pepsi and McDonalds? The court’s response? The parties compete “because the Defendant intended to redirect Plaintiffs’ audience and customers to view content of their choosing.” Treating a “diversion” as competition guts this factor.
· Intent to pass off goods. Of course the defendant isn’t selling any goods at all. He is trying to communicate his political message, and unquestionably there was little likelihood that any web browser would have assumed that the horrible photos were the “goods” of the trademark owner. The court’s response? Purdy registered the domain name with a bad faith intent to profit by diluting the marks and by “relying on Plaintiffs’ good names and goodwill to achieve the personal gain of promoting their messages, generating publicity and raising money for supported causes.” Bad faith intent to profit is important, of course, to an ACPA inquiry, and the court had already ruled against Purdy on that claim—-but inexplicably reuses the same language for the trademark infringement analysis. The references to using goodwill to promote a message might have relevance under trademark law, but they surely do not evidence that Purdy was trying to pass off goods as if they were the plaintiffs’.
· Purchaser care. This inquiry should properly focus on the care exercised by searchers for each of the plaintiffs’ respective products, which would require the court to treat each plaintiff differently. Instead, the court merely focused on the pre-purchase information marketplace, allowing the court to assess how careful Internet searchers are (rather than how careful buyers are when disgorging themselves of their hard-earned money). Framed this way, the court quotes a 2000 case for the proposition that:
“In the internet context, in particular, entering a website takes little effort - usually one click from a linked site or a search engine’s list; thus, Web surfers are more likely to be confused as to the ownership of a web site than traditional patrons of a brick-and-mortar store would be of a store’s ownership.”
I don’t know if this was ever true. Even if it was, I think we need a lot more empirical evidence to support this statement today in 2005.
Even though the court took too many liberties to reach a convenient conclusion, there remains no question that courts will continue to find ways to curtail aggressive marketing techniques by gripers. It seems like the gripers can still have their say, but not by automatically redirecting web browsers to pictures of aborted fetuses.