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Date: Wed, 22 Aug 2001 12:12:30 -0400
From: "Paul Levy" <PLEVY_at_citizen.org>
To: <declan_at_well.com>
Subject: Man bites dog
Declan:
Here is a little story that provides an interesting footnote to Michael
Geist's recent study showing how companies can get an extra advantage in
enforcing their trademark claims against domain name registrants by
selecting the UDRP provider that is most favorable to complainants. What
does a company do when it can't even win in the UDRP?
Bosley Medical Institute is a national company, based in California, which
preys on insecurities about aging by persuading men and woman who cannot
abide the thought of a receding hairline to get cosmetic surgery. Michael
Kremer is a dissatisfied customer who is using the domain names
bosleymedical.com and bosleymedicalviolations.com to post the results of
various medical board proceedings and media reports that have led to
Bosley's paying large fines and having his medical license placed on five
years' probation. Bosley has been disciplined in some twenty states where
he is licensed to practice. A copy of his consent order with Maryland's
medical board, which describes Bosley's practices in some detail and
contains Bosley's admission of the facts, is web-posted at
http://www.docboard.org/md_orders/D4836201.120.PDF.
Bosley went to WIPO to seize the domain name bosleymedical.com, but even in
this favorable forum the arbitrator ruled that the noncommercial use of
bosleymedical.com to publicize grievances against Bosley was perfectly
legitimate, and that Bosley's UDRP complaint was nothing but an example of
"cyberbullying."
http://arbiter.wipo.int/domains/decisions/html/2000/d2000_1647.html.
Completely unchastened by this reprimand, Bosley has now sued Kremer under
the cybersquatting statute and the Lanham Act, seeking injunctive relief
and millions of dollars in damages. And, rather than suing in California
where Bosley is based, and where Kremer lives, it has sued him in Illinois,
trying to put him at a disadvantage by making him defend 2000 miles from
home. Although UDRP proceedings are not binding, and parties who lose in
the UDRP are entitled to de novo review in federal court, the complaint
does not even acknowledged the adverse ruling. This is the first occasion
of which we are aware in which that rara avis - - a complainant who lost
in the UDRP - - has nevertheless sued under the Lanham Act.
The complaint also alleges libel, although so far as we are aware, Bosley
never claimed libel against Dateline NBC, U.S. News and World Report, and
other outlets when they publicized the medical board
investigations. Dateline did its own "hidden camera" investigation of
Bosley as well.
We have just filed a motion to dismiss the lawsuit, arguing among other
things that the case belongs in California, that the trademark claims are
meritless, and that a California company cannot avoid the California SLAPP
statute by suing California residents in another state. Our brief is
web-posted at http://www.citizen.org/litigation/briefs/bosley.htm.
A list of the cities where Bosley operates is available on Bosley's own web
site at http://www.bosley.com/men/location.htm. A Public Citizen press
release describing the case is posted at www.citizen.org/press/pr-lit40.htm.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html
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Received on Aug 22 2001
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