Speech Confusion?

Recently I remarked about whether or not the infamous McDoanld's would prevail if for example some dope like myself were to register a domain name equal to Mickey D's. As an example I used the catalouge outfitters, L.L. Bean, located in Maine. The thrust of my argument was predicated on whether or not I could sucessfully register a domian site similar to that of L.L. Bean, and if my busniness was unlike any Bean product, could I survive a regulator's scurtiny.

This comes to light because I wanted to share the case law I used to springboard my argument from: L.L. Bean, Inc. v. Drake Publishes, Inc., 811 F.2d 26 (1st Cir. 1987). Although the instant case is relevant to a trademark infringement, (defendant copied plaintiff's trademark and made parody of it in the middle of a written publication, not on the cover or back but in the middle). First Circuit, sitting per curium, correctly so, found in favor of defendant and consequently reversed and remanded the case back to the district court for proceedings not inconsistent with its mandate.

This case is notable because it's not a far stretch to think, someday, this could occur on somebody else's web page (perhaps TolandPools.com). What's also relevant here is Professor Katsh's, sitting as the sole panelist for the ICANN hearing, decision in favor of TolandPools.com. Although his decision, to some, may not be exponential, it's a case involving the online exercising of one's constitutional right to Free Speech. Not only can one express oneself online and in writing, but taking a registered trademark and making parody of it in a hard cover magazine continues the inherent constitutional right we've all come to expect from that great legal document--Freedom of Speech.

Essentially, whether Professor Katsh realized it or not, (I am sure he did!) his decision set the benchmark for future disputes not untoward the online role of Freedom of Speech and, moreover, how future regulators will be required to rule/decide.

BRIAN C. MARQUIS