TaubmanSucks.com
WillowBendSucks.com
WillowBendMallSucks.com
ShopsAtWillowBendSucks.com
TheShopsAtWillowBendSucks.com
GiffordKrassGrohSprinkleSucks.com

[ Home Page | Condensed Version | The Movie | News | Blogs | Feedback / Mail List ]


Act 85: We Reply to Taubman's Appeal Brief

We filed our appeal brief in early May 2002, and Taubman responded with their own brief a couple of weeks later. And so today, on June 12, 2002, we filed the following reply to Taubman's brief. (If my understanding is correct – and if there are no surprises – this may be the last paperwork filed with the appeals court before they ask us to visit them in Cincinnati to explain our positions to them. Or there's always a chance that they'll decide that they really don't need to hear anything further from either of us – so the next word from the Court of Appeals may well be their decision.)


UNITED STATES DISTRICT COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Nos. 01-2648 and 01-2725

THE TAUBMAN COMPANY LIMITED PARTNERSHIP,
Plaintiff-Appellee,

v. HENRY MISHKOFF AND WEBFEATS,
Defendants-Appellants.

On Appeal from Preliminary Injunctions of the
United States District Court
for the Eastern District of Michigan
Southern Division

REPLY BRIEF FOR DEFENDANTS-APPELLANTS

Introduction

In his opening brief ("MishBrf."), appellant Henry Mishkoff ("Mishkoff") argued, based on established First Amendment law, and on an analysis of the language and legislative history of the Lanham Act, for reversal of the injunctions against the websites that Mishkoff created to praise the Plano, Texas shopping mall built by plaintiff-appellee Taubman Company Limited Partnership ("Taubman"), and to criticize Taubman for its tactics in this litigation. Mishkoff argued that the Lanham Act does not extend to purely non-commercial websites such as his own, that the First Amendment protects his right to post those websites and to use Taubman's trademarks in his domain names to accurately portray the contents of the websites, and that his use of Taubman's trademarks in this fashion is both nominative fair use and non-confusing under the eight-factor test applied by this Court's decisions.

Taubman's brief ("TaubBrf.") ignores most of these arguments. For example, the term "nominative fair use" does not appear in Taubman's brief, and "fair use" is mentioned only in passing. Instead, in most respects, Taubman simply reiterates the arguments that it made below in obtaining preliminary injunctions against a pro se defendant, which were anticipated in Mishkoff's opening brief and need not be further rebutted now. In several other respects, Taubman invents new reasons for the injunctions, which were not adopted by the court below or even argued there, or bases its defense of the decision below on facts that are not in the appellate record. For example, Taubman makes repeated reference to alleged violations of its copyright, even though there is no evidence of this in the appellate record; Taubman did not even allege a copyright violation until March 2002, several months after the appeals were filed. We have not moved to strike these references in Taubman's brief but simply note some examples in the course of the argument that follows, and urge the Court to disregard the pervasive factual statements that lack a record citation.


[Note: Taubman takes issue with Mishkoff's reliance on the rule requiring de novo review in First Amendment cases. TaubBrf. 14. Neither of the cases it cites calls into question the applicability of Bose Corp. v. Consumers Union, 466 US 485 (1984), to this case. There were no First Amendment arguments in Brookfield Communications v. West Coast Entertainment, 174 F3d 1036 (CA9 1999), and the decision says nothing about the impact of the First Amendment on the standard of review; Dallas Cowboys Cheerleaders v. Pussycat Cinema, 604 F2d 200 (CA2 1979) was decided before Bose.]


Next: Domain Names Are Protected

[ Home Page | Condensed Version | The Movie | News | Blogs | Feedback / Mail List ]

©2002 Hank Mishkoff
All rights reserved.