The U.S. Court of Appeals for the Fourth Circuit ruled on Aug. 24, in the case Lamparello vs. Falwell, that a website with a similar domain name to Falwell’s, but misspelled, can legally maintain its diatribes against the Baptist pastor who once supported racial segregation and has been an outspoken critic of homosexuality, saying on one occasion “that even animals don’t do that.”
Falwell originally sued Lamparello in 2003 over trademark infringement claims and cybersquatting for using Fallwell.com to lambaste Falwell’s religious and social views.
After first winning an order to enjoin Lamparello from using the domain name and transfer it to Falwell, the televangelist eventually lost the case because the three-judge appeals court found it unlikely that users who happen upon a site critical of Falwell are going to mistake it as Falwell's own.
"No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions and his interpretations of the Bible," Circuit Judge Diana Gribbon Motz said in her comments.
According to the panel, a gripe site need not signal its critical nature in the domain name itself so long as the content of the underlying website clearly conveys that gist, the panel ruled.
“Both the domain name and its underlying content must be taken into account in determining likelihood of confusion,” the panel concluded, refusing to recognize Falwell's "initial interest confusion" theory of liability. The court also threw out evidence of an intent to profit financially from use of the domain, which on a good day received an average of 200 hits.
The American Civil Liberties Union applauded the ruling as a victory for free speech on the Internet.
“Trademark law must not be used to inhibit the freedom of speech in this powerful and important medium,” the ACLU said in a statement.
In February 1999, an article in Falwell's National Liberty Journal suggested that a Teletubbies character, Twinky Winky, could be a hidden gay symbol because the character was purple (which he claimed was a color symbolic of homosexuality), had a triangle on his head and carried a handbag.
According to reports, Falwell denied any personal involvement with the original article, and made clear he never had any prior knowledge or concern with the Teletubbies.
