October 13^th, 2006

 

VIA EMAIL TRANSMISSION,

CERTIFIED US MAIL, RETURN RECEIPT REQUESTED

 

Sirote & Permutt

C/O Kerry P. McInerney

2311 Highland Avenue South

Birmingham, Alabama 35205

kmcinerney@sirote.com

 

Intermedia Corporation

800 California Street

Mountain View, California 94041

Abuse@InterMedia.net

 

 

 

 

 

RE: www.BadAmSouth.com

 

Dear Mr. McInerney,

I am the owner of the website BadAmSouth.com individually, and this is in reference to your email of October 11, 2006. Your assertions, which are obviously designed to bully me into shutting down a service where people engage in protected speech, lack merit.

First, your implied allegation that the domain name “BadAmSouth.com” infringe your client’s marks is simply wrong. I am engaging in consumer criticism, and no reasonably prudent user of the Internet would believe that this website is sponsored by your client. See Bally, 29 F. Supp. 2d at 1165 n.2; see also, e.g., Lucent Technologies, Inc. v. Lucentsucks.com, 95 F. Supp. 2d 528 (E.D. Va. 2000) dismissing cybersquatting complaint against operator of lucentsucks.com); Lockheed Martin Corp. v. Parisi, WIPO Case No. D2000-1015 (2001) (refusing to transfer the domain names lockheedsucks.com and lockheedmartinsucks.com); Walmart Stores, Inc. v. walmartcanadasucks.com, WIPO Case No. D2000-1104 (2000) (same, walmartcanadasucks.com). This is not a situation where a trademark was incorporated into a domain name in bad faith. See Caixa d”Estavis y Pensions de Barcelona v. Namezero.com, WIPO Case No. D2001-0360 (2001) (distinguishing criticism sites from those “where the main aim of Respondents was selling their domain names for money”).

 

 

Second, your contention that I have impermissibly and unlawfully infringed upon your client’s rights by use of their protected marks fails as well. My use of the AmSouth logo preceded by the word "Bad" and my use of the AmSouth logo with a red slash through it is not an infringement. No reasonable consumer comparing AmSouth’s official website with my site would assume my site ‘to come from the same source, or …to be affiliated with, connected with, or sponsored by, AmSouth. Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161, 1163-64 (C.D. Cal. 1998). “An individual who wishes to engage in consumer commentary must have the full range of marks that the trademark owner has to identify the trademark owner as the object of the criticism. “ Id. At 1165 n.4.

 

Third, your allegation that statements on my website are “defamatory" against your client is irrelevant unless you contend that the statements are actionable. If that is your contention, then you are not familiar with the law of defamation. No one including AmSouth, has a claim against me (or anyone else) unless, at minimum, the statements complained of are false and defamatory. See Cal. Civ. Code § 45. AmSouth has no claim for statements that are simply disparaging. As a public figure, AmSouth also has no claim for false statements unless AmSouth can establish, by clear and convincing evidence, that the statements were made with knowledge that they were false or with substantial subjective awareness that the statements were probably false. Also, you must establish that any statements complained of by your client are factual, and are not statements of opinion protected by First Amendment. See Global Telemedia International, Inc. v. Doe, 132 F. Supp. 2d 1261, 1267 (C.D. Cal. 2001); Computer Xpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1011 (2001). You have not identified any false statements of fact by me, let alone statements that are defamatory and made with knowledge of falsity or probable falsity. Additionally, the statements posted by others on my website are third-party content, and cannot provide the basis for any claim against me. See Communications Decency Act of 1996, 47 U.S.C. §230©; Zeran v. America Online, Inc., 129 F. 3d 327, 330-31 (4th Cir. 1997), cert. Denied, 524 U.S. 937 (1998); Schneider v. Amazon.com, Inc., 31 P.3d 37, 40 (Wash. Ct. App. 2001).

Accordingly, I reject your demand that I stop using the AmSouth marks and transfer the domain name “BadAmSouth.com” to your client. You should also be advised that I view the initiation of any proceeding by AmSouth as one involving my free speech rights, and I will exhaust all resources to solicit the assistance of the ACLU and like-minded advocates of the First Amendment of our Bill of Rights. Additionally, I will seek to recover all associated attorneys’ fees and costs.

 

It should also be noted that if your firm now represents Regions Financial Corp. in light of the recent merger with AmSouth, my stance is identical concerning the domain names BadRegions.com and RegionsSucks.com and all content contained on the mentioned websites.

 

Please advise your client that here in America, it stands to reason, consumer criticism will be the end result to your clients actions of creating and practicing unethical business policies that prey on unwitting consumers.

 

Feel free to email me if you wish to discuss this matter further.

 

Very truly yours,

 

 

Rusty Doebler

Johnson City, TN

Rusty@BadAmSouth.com