I want to call your attention to another court decision that upholds the right of a consumer to create a non-commercial web site criticizing a company, using the company’s name as the domain name. Lucas Nursery and Landscaping v. Grosse, 2004 WL 403213 (6th Circuit March 5, 2004).

This case involves Lucas Nursery, a landscaping company in the suburbs of Detroit, Michigan, which apparently botched work done for Michelle Gross - or at least that was her opinion. But, when she established a web site to tell her story, Lucas sued her under the Anticybersquatting Consumer Protection Act (“ACPA”). She took the site down but Lucas persisted, taking her gesture as a sign of weaknesses and hoping to get some blood - or, perhaps, to send a message to other critics. But the trial judge decided she had not posted her web site with a bad faith intent to profit, and the United States Court of Appeals for the Sixth Circuit has now affirmed.

The court began by going, one-by-one, through the factors set forth by the ACPA, but then it took a step back and gently reprimanded itself for potentially being too mechanical:

“Although Grosse’s actions would arguably satisfy three of the four aforementioned factors, she does not fall within the factor that we consider central to a finding of bad faith. She did not register multiple web sites; she only registered one. Further, it is not clear to this Court that the presence of simply one factor that indicates a bad faith intent to profit, without more, can satisfy an imposition of liability within the meaning of the ACPA. The role of the reviewing court is not simply to add factors and place them in particular categories, without making some sense of what motivates the conduct at issue. The factors are given to courts as a guide, not as a substitute for careful thinking about whether the conduct at issue is motivated by a bad faith intent to profit. Perhaps most important to our conclusion are, Grosse’s actions, which seem to have been undertaken in the spirit of informing fellow consumers about the practices of a landscaping company that she believed had performed inferior work on her yard. One of the ACPA’s main objectives is the protection of consumers from slick internet peddlers who trade on the names and reputations of established brands. The practice of informing fellow consumers of one’s experience with a particular service provider is surely not inconsistent with this ideal.”

Hard to put it better than that.

Grosse was represented by Jeffrey Wilson, a lawyer in private practice in Southfield, Michigan, with the firm of Raymond & Prokop.