Free Speech Vs. Trademarked URLs & Keywords

Consumer watchdog Public Citizen has filed a friend of the court brief on behalf of Michael Morgan, a Florida realtor sued by homebuilder Lennar for using its corporate name in the URL of a web site critical of Lennar, and for buying sponsored search ads using the trademarked name to promote the site.

According to Paul Alan Levy, the Public Citizen attorney who authored the amicus curiae brief, “this is the first case in which Public Citizen has been involved dealing with the trademark ramifications of noncommercial, keyword ad purchases – a relatively new area of litigation – that are protected in most cases by the First Amendment.”

Levy continued:

Michael Charles Morgan was a broker for several customers who were unhappy about alleged defects in Lennar-built homes. After Morgan’s complaints to the company did not receive satisfactory responses, he created two noncommercial Web sites that included criticism and media reports about Lennar and more general consumer information.

Morgan registered the domain names www.defectivehomes.us and www.lennar-homes.info. Morgan also purchased keyword advertising to be displayed when a search engine user conducts searches for Lennar.

Although Morgan’s sites and ads were clearly noncommercial and intended to warn consumers about problems with Lennar Homes, the corporation sued for trademark infringement.

Public Citizen is recommending that the court accept Morgan’s request for summary judgement dismissing Lennar’s claims.

Here is the full text of Public Citizen’s brief (PDF).