Defending Consumers’ First Amendment Rights

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 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