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Ficker v. Tuohy

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Citation Edit

Ficker v. Tuohy, 305 F.Supp.2d 569 (D. Md. 2004) (full-text).

Factual Background Edit

Plaintiff, an attorney and a Republican candidate for election to the 8th Congressional District of Maryland, owned the domain name "" and used it for his campaign website. Defendant owned the domain name "" and used it to provide summaries of disparaging new stories about plaintiff.

Trial Court Proceedings Edit

Plaintiff sued defendant for cybersquatting, infringement, and other claims. The court denied plaintiff's motion for a temporary restraining order prohibiting defendant from using the domain name "" or any similar domain name.

The court first found that plaintiff failed to demonstrate that he would suffer irreparable harm if his motion were denied. In addition, defendant did not mislead web users because the website contained a disclaimer stating, "This is an unofficial cite. It is not Robin Ficker for U.S. Congress. Robin Ficker for Congress can be found here." The court noted that any potential harm to plaintiff could occur only due to the content of "" and that defendant's First Amendment rights outweighed any harm done. Moreover, plaintiff invited the criticism by running for Congress and entering the public arena.

The court also rejected plaintiff's argument that defendant's website was commercial and harmed plaintiff's law practice, stating that the website was political in nature and concerned only plaintiff's political candidacy. Turning to the merits, plaintiff failed to show a likelihood of success on the merits of its cybersquatting claim. The court stated that it was not "convinced, at this point, that the ACPA provides coverage for personal names that are trademarked, where the websites have no commercial use."

The court also noted that the Lanham Act provides that "non-commercial use of a mark" is not actionable under Section 43 of the Act. Moreover, this suit's implication of defendant's First Amendment rights was "an overriding issue." Finally, although the public has an interest in fair elections, it also has an interest in the right to free speech, so these competing interests essentially cancelled each other out.

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