TAMPA, FLORIDA – A new home owner has the legal right to use the name of his home’s construction company to publicize his web site criticizing the company, Public Citizen told the U.S. District Court for the Middle District of Florida today.
Defendant Andrew Smith is one of a group of people living in the Willowbrook subdivision of Lakewood Ranch, Florida, who are dissatisfied with what they say is shoddy construction of their new homes, and are calling on the construction company KB Home to take responsibility for its mistakes and buy back the homes. Smith created a non-commercial website at thekbhome.com to express his opinions and campaign for a buyback program.
KB Homes filed a lawsuit on Oct. 15 against Smith, claiming that his domain name counts as prohibited cybersquatting rather than protected non-commercial speech. As Public Citizen’s memorandum explains, Smith’s site is protected for several reasons:
– Decisions of several federal courts have held that non-commercial commentary sites about a trademark holder may use the trademark holder’s name as their domain name without violating either the Lanham Act or the Anticyberquatting Consumer Protection Act (ACPA). The First Amendment also protects such speech.
– The fact that the objective of the expression on his web site and in his domain name is to achieve a change that would benefit him personally, along with others in his community, is no reason to deny him constitutional or statutory protection.
Additionally, Public Citizen explains, KB Home is attempting to prejudice the court by associating Smith with a separate group of Willowbrook homeowners, who allegedly hacked into the wifi hotspot of a company doing repairs at Willowbrook and downloaded the company’s emails. But simple allegations of conspiracy are insufficient, and an ACPA claim can be brought only against a defendant who wrongfully registers or uses a domain name, not others in associated groups.
Upon visiting Smith’s site, one quickly sees a banner reading “Consumer Advocacy & Protection” and “Attention: This is not an official KB Home website!”, the latter in all capital letters.
“Andy Smith has used KB Home’s name to identify a web site about how badly this developer is abusing its customers, and to try to persuade the developer to buy back the lemons that it sold,” said Paul Alan Levy, an attorney with Public Citizen who is representing Smith. “The price of public spirited free speech should not be having to defend against frivolous trademark claims.”
Christine Allamanno of Gulfcoast Legal Services is local counsel for Smith.
Read more and see a copy of Public Citizen’s filings here.
Contact: Sam Jewler (202) 588-7779; Paul Alan Levy (202) 588-7725
We’re not backing down in the face of Trump’s threats.
As Donald Trump is inaugurated a second time, independent media organizations are faced with urgent mandates: Tell the truth more loudly than ever before. Do that work even as our standard modes of distribution (such as social media platforms) are being manipulated and curtailed by forces of fascist repression and ruthless capitalism. Do that work even as journalism and journalists face targeted attacks, including from the government itself. And do that work in community, never forgetting that we’re not shouting into a faceless void – we’re reaching out to real people amid a life-threatening political climate.
Our task is formidable, and it requires us to ground ourselves in our principles, remind ourselves of our utility, dig in and commit.
As a dizzying number of corporate news organizations – either through need or greed – rush to implement new ways to further monetize their content, and others acquiesce to Trump’s wishes, now is a time for movement media-makers to double down on community-first models.
At Truthout, we are reaffirming our commitments on this front: We won’t run ads or have a paywall because we believe that everyone should have access to information, and that access should exist without barriers and free of distractions from craven corporate interests. We recognize the implications for democracy when information-seekers click a link only to find the article trapped behind a paywall or buried on a page with dozens of invasive ads. The laws of capitalism dictate an unending increase in monetization, and much of the media simply follows those laws. Truthout and many of our peers are dedicating ourselves to following other paths – a commitment which feels vital in a moment when corporations are evermore overtly embedded in government.
Over 80 percent of Truthout‘s funding comes from small individual donations from our community of readers, and the remaining 20 percent comes from a handful of social justice-oriented foundations. Over a third of our total budget is supported by recurring monthly donors, many of whom give because they want to help us keep Truthout barrier-free for everyone.
You can help by giving today. Whether you can make a small monthly donation or a larger gift, Truthout only works with your support.