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Act 112: We Win the Appeal!!

On February 7, 2003, nearly sixteen months after a United States District Court injunction ordered me to remove my ShopsAtWillowBend.com website from the Internet, and fourteen months (to the day) after that injunction was expanded to include this website, both of the injunctions were "dissolved" by the United States Court of Appeals. (Technically, there was only one injunction, first issued and then later amended – but the Court of Appeals decision treats them as two separate injunctions, so I'll follow their lead and use the plural.)

Although I was exhilarated by this decision, there is one critically important caveat, which is that while the Court of Appeals decision overturned the injunctions, it did not decide the case, which has been on hold awaiting this decision. It's my understanding that the District Court will be officially "notified" of the Appeals decision later this month, at which time the case will resume (unless Taubman decides to contest the Appeals decision, which could result in some delays). And what will happen then is anybody's guess. I'd like to think that the Court of Appeals interpreted the law so firmly in my favor that it will have a positive impact on my case – but if this case has taught me anything, it's taught me that trying to predict what a judge is going to do is a risky business, at best. So although I can't deny that I'm optimistic, I also must admit that my optimism is tempered by a healthy dose of caution.

Before I comment on the many positive aspects of the decision, I should mention that I did lose one battle: the Court of Appeals rejected my contention that the District Court in Michigan did not have jurisdiction over me in this case. More accurately, they upheld the District Court's finding that my challenge to jurisdiction was filed too late to be legally valid (it was "untimely," to use their description). In other words, I lost this particular fight on a legal technicality.

Having said that, losing this particular fight was not all bad, from a couple of different perspectives.

First, the fact that the Court of Appeals ruled so heavily in my favor leads me to be pleased that they had jurisdiction. In other words, if they didn't have jurisdiction, they wouldn't have been able to issue such a positive ruling. Yes, I know that this is more than a little convoluted – and if you don't think this makes a lot of sense, I won't argue with you. But the fact is that if they had been about to issue a negative ruling but had decided that they lacked jurisdiction, I would have been happy that I had won that battle. The fact that their ruling was so favorable to me takes the sting out of losing the jurisdictional fight. (Hey, I warned you that this was convoluted.)

But more to the point: Judge Zatkoff, the District Court judge who is hearing my case, not only denied my jurisdictional challenge because of a legal technicality, he said that even without that technicality he would have ruled against me anyway. ("Though Defendants' waived their personal jurisdiction defense on procedural grounds, their motion would be denied on the merits as well.") However, the Court of Appeals, while not directly addressing the merits of my case on this point (they didn't need to, because of the "untimeliness" of my challenge), went out of their way to mention that they were not as certain about the deficiency of my argument as Judge Zatkoff had been. ("Although Mishkoff raises serious doubts in our minds about whether the district court properly held jurisdiction, his motion was ultimately untimely.")

So, you ask, why is this important?

Although this may be an oversimplification (and is certainly not meant to represent Taubman's argument), the logical extension of Judge Zatkoff's claim that his court in Michigan had jurisdiction over me (even though I created a website from my home in Dallas about a shopping mall a few miles from my house) is that, since a website can be seen anywhere in the world, any Court can claim jurisdiction over anybody who posts anything on the Web. (This is not what Judge Zatkoff said, I'm merely suggesting that this is where his point of view might lead.)

This would mean that a company claiming that a website infringes on their trademark (or libels them, or whatever) could initiate a lawsuit in any jurisdiction that was convenient for them – and, more to the point, they could initiate a lawsuit in whatever jurisdiction was most inconvenient for the person whom they were suing. If this were the case, companies would routinely win lawsuits against individuals by "default," as many individuals lack the resources to fly around the country just to defend themselves in court. So this is why I'm encouraged that, even though Judge Zatkoff claimed that he had jurisdiction over me in this case, the Court of Appeals said that they had "serious doubts" about that.

OK, on to the good stuff...

As you'll see if you follow the link below to read the decision, the Court of Appeals dissolved the injunctions because they found that (1) I did not use Taubman's trademarks "in connection with the sale or advertising of goods or services," and (2) "there is no likelihood of confusion among consumers." In other words, trademark law is designed to prevent commercial confusion – but my websites were neither commercial nor confusing.

I was especially gratified that the Court of Appeals saw through opposing attorney Doug Sprinkle's blatant misrepresentations at the appeals hearing, when he claimed that he and I had discussed settlement of the case prior to his partner's letter that offered me $1,000 to settle the case. This was firmly rejected by the Court, which pointed out that I "did not even initiate the bargaining process here." More to the point, the Court noted that "although Taubman's counsel intimated at oral argument that Mishkoff had in fact initiated the negotiation process, correspondence in the record supports the opposite conclusion..." I was worried that Mr. Sprinkle's misrepresentations might have influenced the Court in his favor, but I'm relieved to see that they failed to do so. (In fact, they may have worked against him, as I can't imagine that judges appreciate that kind of behavior in their courts.)

But the aspect of this decision that is most exciting to me is the Court's complete and unequivocal rejection of Taubman's contention that anything about this website could possibly be a violation of trademark law. Specifically, they found that my use of the TaubmanSucks.com domain name "is purely an exhibition of Free Speech, and the Lanham Act is not invoked." (FYI, the "Lanham Act" is the federal trademark law.) And in a spirited defense of the right of people to create complaint sites, the Court added that "although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act."

Waxing somewhat poetical, the Court noted that Taubman had conceded that I was free to shout "Taubman Sucks!" from the rooftops, and added: "Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it."

And finally, I should point out that I owe this victory to the unflagging efforts of my attorney, Paul Levy of Public Citizen. Paul agreed to represent me (at no charge!) not because I'm a nice guy (I am, of course, but that's not why he agreed to represent me...), but because he has devoted his professional career to using the legal system to influence public policy in ways that enhance the rights and freedoms that so many of us take for granted. Of course, I'm pleased that the decision of the Court of Appeals was so favorable to my case, but I'm just as pleased that Paul's efforts resulted in such a resounding affirmation of our Constitutional right to express ourselves – and in such an unequivocal statement that that right extends to electronic expression over the Internet.

Next: The Appeals Decision

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