The American Heart Association threatened to sue Karl Loren but didn't say a word after Karl published their threat in these web pages, and also published his reply to the AHA.
The main thrust of the AHA threat was that Karl Loren was improperly using the Registered Trademark of the AHA, but Karl included a reason, within the law, why this allegation was not valid.
The Wall Street Journal, December 3, 1999, had an article that relates to this issue.
By RICHARD B. SCHMITT
Staff Reporter of THE
WALL STREET
JOURNAL
Carla Virga may be a pest that Terminix International Co. can't control.
Two years ago, Mrs. Virga launched a Web site to complain that the nation's largest termite and pest company had mishandled an inspection of her home in Yuba City, Calif. She says the site has attracted about 16,000 visitors, some of whom have shared their own tales of woe. Mrs. Virga has also done some digging of her own, contacting state regulators and posting what she learned about consumer complaints against the company.
Now Terminix is bugged. The company says Mrs. Virga has engaged in trademark violations, deceptive practices and unfair competition. And in October, it filed suit in U.S. district court in Memphis, Tenn., seeking to bar her from using the names of Terminix and its sister companies to steer traffic to her Web site. If Terminix wins, Ms. Virga says, she will be cut off from a large portion of her Internet audience.
The battle between Mrs. Virga -- a secretary and mother of four -- and Terminix, a unit of giant ServiceMaster Co., may help define the limits of free expression on the Internet. In recent years, scores of sites critical of corporate practices have sprung up on the Web, giving irate consumers a new audience for their frustrations.
"Terminix could both set a dangerous precedent for other consumers and insulate itself from effective criticism on the Internet," says Paul Levy, an attorney for Public Citizen Litigation Group, an organization founded by consumer advocate Ralph Nader, which is representing Mrs. Virga. "It is an extreme case. It could have a chilling effect."
At issue is the way Mrs. Virga is using the Terminix name -- and trademarks covering other company businesses, such as Merry Maids and Rescue Rooter -- to attract traffic to her site. She has adopted the common, if controversial, practice of incorporating references to Terminix in her site's hidden electronic codes, known as "meta tags," which some search engines rely on to help Web surfers find sites.
Thus, plug in "Terminix" and you'll find the company's official site, featuring cuddly Terminix "TeenyBug" gifts for kids and a chance to buy pest-control services online. You'll also hit on Mrs. Virga's very unofficial site (www.syix.com/emu/index.htm), featuring, among other things, a state-by-state account of company legal problems, from environmental disputes to alleged cases of consumer fraud, including her own version of how the company allegedly drove her into a bankruptcy-law proceeding.
"It is like putting up a set of golden arches on the roadside but when you go inside, there's no McDonald's," says Stephen Good, a Terminix spokesman. "She is entitled to her opinions and interpretation of events. But to the extent she is using our trademark to bring people to a bad-mouth site, we simply want that ceased."
In court papers, the company says Mrs. Virga's "deception" results in a "dilution" of its property rights, may confuse consumers and potentially disrupts its business, including a big recent push to attract business through the Internet. It is seeking an injunction prohibiting her from using the company trademarks in her electronic codes so she will not be able to divert Web surfers in the future.
Courts have cracked down when Web-site operators, using company trademarks and logos, are making money off the sites, trying to gain a competitive advantage or posting defamatory material. Last year, for example, a federal court in Alexandria, Va., ruled against an operator of an adult-oriented Web site who was using "Playboy" and "Playmate" key words to lure people to his site.
Courts have suggested that "misleading people in order to get them to your message" will get you in trouble under the law, says Richard Kurnit, a New York trademark and advertising lawyer. But "that argument is obviously much weaker here, where you have somebody who is not looking to divert sales but is looking to give information to consumers." Mrs. Virga and her lawyers say her case is different because she doesn't accept advertising and isn't selling anything.
Moreover, courts have been sensitive to free-speech concerns. In September, a U.S. district judge in Detroit turned down a request from Ford Motor Co. to clamp down on a Web-site operator who was publishing proprietary company documents on the Internet, saying the First Amendment trumped Ford's claim that the operator had violated trade-secrets law. The case didn't turn on the meta-tag issue, however.
Mr. Levy of Public Citizen says Terminix suggests in its court papers that the mere mention of the company's name on Mrs. Virga's Web site violates its rights. Terminix's Mr. Good says the company is concerned about any use of its mark in connection with "inaccurate and misleading information," but is mainly concerned with her use of the company's name to steer traffic to her site.
Mrs. Virga, now 50, didn't immediately turn to the Web. She first sued Terminix in state court in California, contending its inspectors missed extensive dry rot and moisture damage at her house, which she says should have been reported to her under state law. She lost.
Faced with over $100,000 in legal expenses, Mrs. Virga says, she filed for bankruptcy-law protection and took her case to state agencies and elected representatives, who said they couldn't help. Then a light went off.
"I had exhausted everything else. It just came to me one day: This is the way to get to the public," she recalls. Her husband bought her a guide to creating Web sites and she was off and running. She proved to be an adept operator. Type in "Terminix" on the Alta Vista search engine, and Mrs. Virga's "Terminix -- Consumer Alert" pops up first, even before the company site. Misspell the company's name as "Terminex" and Mrs. Virga's site still appears.
In addition to recounting Mrs. Virga's court battle with Terminix, the site includes beefs from other Terminix customers who have e-mailed her. (She says she edits out all profanities.)
Mrs. Virga says she has found the process to be quite therapeutic and, from what she hears, helpful to other consumers as well as attorneys suing the company. She says the site is "all mine" and that she gets no money or support from anyone to operate it.
It certainly got Terminix's attention. Last year, the company sued Mrs. Virga in California state court, alleging that the site was defamatory. Mrs. Virga won that round after a judge decided the case was meritless and barred under a state law restricting suits by companies that are deemed to be attempting to use the courts to suppress public discussion about them.
Public Citizen's Mr. Levy suggests that with its latest effort to squish Mrs. Virga, the company is bordering on overkill. But Mr. Good says: "We believe we have a right to protect the equity we have built up in a 70-year-old brand. It just so happens this is on the Internet."
Copyright © 1999 Dow Jones & Company, Inc. All Rights Reserved.
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