Bosley Medical Institute, Inc. v. Kremer

Bosley Medical Institute, Inc. v. Kremer, 9th Cir. 2005

A. Facts: Defendant Michael Kremer was not satisfied with the hair restoration services provided to him by Plaintiff Bosley Medical Institute, Inc. Kremer started a gripe site under the name “www.bosleymedical.com.” He used the identical Bosley Medical Institute trademark. Kremer earned no revenue from the website and no goods or services were sold on the website. Kremer’s website did contain a link to Kremer's attorney's website.

B. Procedure: Bosley brought suit alleging trademark infringement, dilution, unfair competition, various state law claims, and a libel claim. At the district court level, Kremer argued that noncommercial use of the mark is not actionable as infringement under the Lanham Act. Bosley said Kremer was splitting hairs. The district court agreed with Kremer, and entered summary judgment for Kremer on the federal claims.

C. Issue: Whether Kremer’s use of Bosley Medical as his domain name was “in connection with a sale of goods or services.”

D. Holding: “Bosley cannot use the Lanham Act either as a shield from Kremer’s criticism, or as a sword to shut Kremer up.” The Ninth Circuit held there no was use in connection with a sale of goods or services, as required by the Lanham Act. The website was in connection with the expression of Kremer’s opinion about Bosley’s goods and services. Kremer was simply using his First Amendment rights to express complaints about the services.

E. Analysis: In support of Kremer’s use being noncommercial, he showed there were no links, no ads, and no revenues. Additionally, the link to a lawyer was not commercial, and Kremer wasn’t attempting to sell anything. Rejecting Bosley’s three arguments, the court reasoned:

1. The Nissan case holds that a connection to goods/services could be found if the website interferes with an attempt to reach a commercial site; however, this court refuses to extend the law that far.

2. Unlike Panavision, there was no evidence that Kremer was trying to sell the domain name itself.

3. Court rejected theory that Kremer was attempting to prevent users from obtaining plaintiff’s goods/services, see PETA

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