Go to the Web site www.bosleymedical.com and you won't find the cyber-home of the hair-restoration clinic made famous by its late-night infomercials. You'll find pages upon pages of criticism of the company, including information about lawsuits and investigations dating back to 1979.
Not surprisingly, the domain name doesn't belong to the California-based Bosley Medical Institute. It belongs to Michael Kremer, a former patient of the company's Seattle clinic.
"The site is strictly noncommercial," says Paul Alan Levy, lead counsel for Kremer and an attorney at the Washington, D.C.-based Public Citizen Litigation Group, a public interest law firm that works on behalf of consumers. "And trademark laws are about commerce, not consumer commentary."
But Bosley made one last ditch effort to deem the site commercial. It accused Kremer of trying to extort money from the company by trying to sell the domain name to Bosley. This argument, however, fell flat on its face in court for lack of evidence. And ultimately, the court ruled in Kremer's favor. (Attorneys representing Bosley didn't respond to interview requests for this story.)
The issue in Kremer, however, isn't so black and white. And Kahn fears the 9th Circuit's decision in the case may have negative repercussions on trademark holders.
"First, it could add to the clutter on the Internet by encouraging those desiring to criticize companies to register domain names that resemble official domain names," he explains. "And second, it could spook companies into mass registrations in an effort to get control over every possible variant of domain name with regard to their trademark."