[rumori] Ruling against Parody PETA site

From: stereogab ...... (stereogabAThotmail.com)
Date: Fri Aug 24 2001 - 07:02:40 PDT

>From Tech Law Journal Daily E-Mail Alert No. 256:

4th Circuit Affirms Judgment Against Parody Web Site Operator 8/23. The
<http://www.ca4.uscourts.gov/>U.S. Court of Appeals (4thCir) issued its
<http://pacer.ca4.uscourts.gov/cgi-bin/getopn.pl?OPINION=001918.P>opinion in
PETA v. Doughney, a domain name registration dispute involving claims of
service mark infringement, unfair competition, dilution and cybersquatting.
The Appeals Court affirmed the District Court's judgment that a domain name
used for a non commercial parody web site must be transferred to the mark

Background. Michael Doughney registered the domain peta.org with Network
Solutions in 1995. He then created a parody web site titled "People Eating
Tasty Animals," which advocated eating meat, hunting, and wearing fur.
People for the Ethical Treatment of Animals was not amused. Moreover, it had
registered the PETA mark in 1992. See, Trademark Registration No. 1,705,510.
PETA demanded that Doughney transfer the domain name to it. Doughney offered
to settle. PETA now holds the <http://www.peta.org/>www.peta.org domain;
Doughney has moved his parody site to

District Court. PETA filed a complaint in the U.S. District Court (EDVa)
against Doughney in 1999 alleging service mark infringement under
<http://www4.law.cornell.edu/uscode/15/1114.html>15 U.S.C. 1114 and
Virginia common law, unfair competition under
<http://www4.law.cornell.edu/uscode/15/1125.html>15 U.S.C. 1125(a) and
Virginia common law, and service mark dilution and cybersquatting under 15
U.S.C. 1125(d). The District Court granted summary judgment to PETA on all
three claims. This appeal followed.

Infringement. The Appeals Court affirmed the summary judgment on service
mark infringement. Doughney argued that, while PETA holds the PETA mark,
there was no service mark infringement because his use of the mark was not
in connection with goods or services, and because there was not a likelihood
of confusion. The Court held that "Doughney need not have actually sold or
advertised goods or services on the www.peta.org website. Rather, Doughney
need only have prevented users from obtaining or using PETA's goods or
services ..." Doughney argued also that there was no likelihood of confusion
because once web users visited his web site, they would realize that it was
a parody. The Court, however, held that its analysis should be limited to
the domain name only, and not include the content of the web site. It
conceded that "the website's content makes it clear that it is not related
to PETA". However, it wrote: "The domain name peta.org simply copies PETA's
Mark, conveying the message that it is related to PETA. The domain name does
not convey the second, contradictory message needed to establish a parody --
a message that the domain name is not related to PETA, but that it is a
parody of PETA." The Court did not address dilution.

Cybersquatting. The Appeals Court affirmed the District Court's grant of
summary judgment to PETA under the recently enacted Anticybersquatting
Consumer Protection Act (ACPA), codified at 15 U.S.C. 1125(d). Dougherty
argued that the ACPA should not be applied retroactively to his acts in
1995, that he did not seek financial gain, and that he did not act in bad
faith. The Appeals Court rejected all arguments. The Court held that the
ACPA does apply retroactively; Dougherty's statement that PETA should
"settle" with him constituted seeking financial gain; and, based on
application of the nine good faith criteria listed in the ACPA, Dougherty
acted in bad faith.

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