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Act 34: Public Citizen Files an Amicus Brief

Paul Levy of Public Citizen has filed an Amicus Curiae ("friend of the Court") brief opposing Taubman's effort kill this website!

To refresh your memory: Early in this case, Taubman won an injunction ordering me to remove my ShopsAtWillowBend.com site from the Web. (I've appealed the injunction, by the way, and Public Citizen is representing me in that appeal.) At about that time, I created this website – and Taubman, predictably, asked the judge to expand his injunction to include it as well. I responded to Taubman's motion, and then the judge ordered me to "Show Cause" why he should not expand his motion, so I responded to that, too. And now Public Citizen, which has been active in supporting the right to use "sucks.com" sites, has filed their own brief in support of mine.

I'm not going to reproduce Public Citizen's brief because it's online on their website, at:

Some of the main points of the Amicus brief include:

  • Mishkoff's non-commercial speech enjoys full First Amendment protection.

  • Taubman has no likelihood of success on the merits.

  • There is no trademark infringement or cybersquatting because "TaubmanSucks" is neither identical nor confusingly similar to "Taubman," and there is no likelihood of confusion about who sponsors Mishkoff's website.

  • Because Mishkoff's use of plaintiff's mark is noncommercial, plaintiff has no claims under the trademark laws.

  • The absence of any showing of bad faith also precludes a finding that defendant's "sucks" sites violate the cybersquatting statute.

  • Conclusion: The motion to expand the preliminary injunction to include defendant's "sucks" domain names should be denied.

Next: The Scheduling Conference

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