May 19, 2005
New Gripe Site Case--Faegre & Benson v. Purdy
Faegre & Benson v. Purdy, Civil File No. 03-6472 (D. Minn. Apr. 27, 2005).
Another ruling in the long-running story of William Purdy, an anti-abortionist who uses extreme forms of gripe sites against his targets. This particular ruling was a motion to hold Purdy in contempt for violating previous orders against him. Normally, contempt rulings aren’t that substantive, but this particular ruling had a number of noteworthy aspects.
Purdy used the law firm’s name in the keyword metatags of a gripe site. He also used the firm’s description metatag as the gripe site’s description metatag (called “pagejacking,” though the term wasn't used by the court). The court says:
“Purdy cannot be entirely barred from using Faegre’s trademarks in his metatags….he may legitimately use Faegre’s trademarks in his metatags in order to refer to Faegre and to describe the contents of his website.”
So far, so good. Now, the opinion gets weird. It says:
“Purdy can legally use Faegre’s marks in his metatags in the descriptive sense, particularly if he employs a disclaimer on his web pages; however, he is not permitted to use Faegre’s marks in his metatags in order to divert Internet users from Faegre’s web site.”
OK, what’s the difference? Purdy can advertise his site as having some topical relationship to Faegre & Benson, and he can even do so “surreptitiously” in the metatags. However, Purdy can’t divert Internet users from the Faegre site? When is a searcher diverted vs. just pursuing a topic of interest?
The court refers to Purdy's pagejacking as the diversion. This is fine, but is this appropriately treated as a trademark infringement issue? A number of commentators (including me) have argued that pagejacking, if actionable at all, should be considered under false advertising, not trademark infringement. The court here lazily deals with it under trademark law, which weakens our ability to understand the court’s reasoning.
Purdy also registered hindrocket.com as part of an attack on John Hinderaker, who blogs under the pseudonym “hindrocket.” The court does not like this (in light of the previous orders), even though Purdy used various disclaimers. The court says:
“Although Purdy’s disclaimers may alleviate confusion once an Internet user has reached the content of the web site, by employing “hindrocket.com” as his domain name, Purdy appropriated Hinderaker’s name for his own purposes and benefit—to mislead Internet users into visiting Purdy’s web site when they are actually seeking Hinderaker’s web site. Even if an Internet user eventually realizes that Purdy’s site is not sponsored by Hinderaker, Purdy will have already gained the benefit of luring the user to his web site by exploiting Hinderaker’s name.”
This is a confusing paragraph for a number of reasons. First, the court is protecting Hinderaker's pseudonym under an “appropriation” tort, defined as when someone “appropriates to his own use or benefit the name or likeness of another…for the purpose of taking advantage of that individual’s name, or reputation.” This is an odd doctrine—it’s not a classic right of publicity (which, normally, would require some commercial use of the name) nor a classic right of privacy. Thus, the court is able to find that Purdy engaged in “appropriation” despite the lack of any commercial activity.
Second, the court is treating the appropriation as having occurred through a form of “initial interest confusion” (though the court doesn’t use the words). We’ve seen this in other cases, such as PETA v. Doughney. However, I can’t recall seeing the doctrine applied in a right of publicity case (and certainly never in an “appropriation” case).
But why didn’t the court refer to the Ninth Circuit Bosley case, where the Ninth Circuit reached a different result in the case of a gripe site registering a domain name? The Bosley case was under the Lanham Act, not this funky appropriation doctrine, so that may have made a difference. Further, the court doesn’t care if the gripe site is non-commercial because the appropriation tort doesn’t require commerciality.
Nevertheless, the initial interest confusion doctrine (whether applied in the context of the Lanham Act or in some other tort doctrine) is a mess, and this case shows why. (1) How do we know what someone is looking for when they enter the term “hindrocket.com”? (2) The material at hindrocket.com was topical to John Hinderaker, so why can’t Purdy register that domain to present topical content? (3) Anyone who didn’t want to be there would have immediately recognized the errors of their ways and could leave instantly, so what harm was done?
(Note that there are some laws protecting the use of third party personal names as domain names, such as 15 USC 1129 and California Business & Professions Code 17525. None of these laws were invoked.)
Finally, the plaintiffs claimed that Purdy was responsible for anti-Hinderaker comments posted on a message board attached to his website. The court shuts down these claims under 47 USC 230, saying Purdy isn't liable for either defamation or “appropriation” based on third party message boards. Although I think this is the right result, the appropriation claim being shut down by 47 USC 230 is particularly interesting because 230 does not apply to “IP claims.” Compare the Perfect 10 v. CCBill case, where the court held that a “right of publicity” claim was not covered by 47 USC 230 because it was an IP claim.
It's hard to be sympathetic to Purdy's situation because he engages in such extreme tactics to make his point. On that front, I think the judge did an admirable job balancing competing policy norms and not just trashing Purdy. On the other hand, this ruling could have some important implications for both gripe sites and search behavior generally, and a little more rigor would have been nice.