- The Washington Times - Thursday, May 26, 2005

RICHMOND — A Web site critical of the Rev. Jerry Falwell’s views on homosexuality engages in constitutionally protected, noncommercial speech and should be allowed to keep the name fallwell.com, an attorney for the site’s owner told a federal appeals court yesterday.

Christopher Lamparello of New York City took his case to the 4th U.S. Circuit Court of Appeals, seeking to reverse a judge’s ruling that he violated federal trademark law by using a common misspelling of Falwell as a domain name.

Mr. Falwell’s attorney maintained that Mr. Lamparello’s use of a variation of the television evangelist’s name bordered on theft.

“It’s been wrong to steal since Moses came down from the mountain,” attorney John H. Midlen Jr. said.

U.S. District Judge Claude Hilton ruled last August that the domain name was nearly identical to the trademark bearing Mr. Falwell’s name and could confuse Web surfers, despite a disclaimer noting that the site is not affiliated with Mr. Falwell.

Judge Hilton also ruled that the site had a commercial element because it included a link to a book available on amazon.com. Mr. Lamparello has said he made no money off the link.

“He referred to a single book he thought did a better job than he did” explaining religion and homosexuality, said Lamparello attorney Paul Levy, adding that the amazon.com link was removed three years ago.

Mr. Levy also said it was unlikely that anyone visiting the Web site would mistake it for Mr. Falwell’s official site, not only because of the disclaimer but also because of the clearly adversarial content.

“The Web page itself is not at all confusing,” Mr. Levy said.

Judge Diana Gribbon Motz, part of a three-judge panel of the appeals court, pressed that point, asking Mr. Midlen: “Anyone reading this Web site would know it’s not Reverend Falwell’s Web site, wouldn’t they?”

Mr. Midlen said he would not concede that point because a Web surfer who types “Fallwell Bible homosexuality” into a search engine will get Mr. Lamparello’s site near the top in the list of search results. Others might reach Mr. Lamparello’s page by guessing the name of the Falwell site and misspelling the minister’s name when they type it into their Web browser, Mr. Midlen said.

Jerry Falwell Jr., general counsel for Falwell Ministries, said after the hearing that the ministries regularly receive letters from people who thought they were accessing the Falwell site only to wind up on Mr. Lamparello’s. He speculated that many others have the same experience but remain silent.

“You don’t know how many people would have come to your site if they hadn’t gotten confused and gone elsewhere,” Jerry Falwell Jr. said.

Mr. Lamparello, who listened to the arguments from the courtroom’s front row, later told reporters that keeping the domain name is important because “it describes the site.”

The appeals court usually rules several weeks after hearing arguments.

Mr. Lamparello is not the first Web master to clash with Mr. Falwell over domain names. In 2003, Gary Cohn of Highland Park, Ill., surrendered the domain names jerryfalwell.com and jerryfallwell.com after Mr. Falwell threatened to sue him over trademark infringement.

Mr. Cohn said he created the sites in response to Mr. Falwell’s public comments after the 2001 terrorist attacks. Mr. Falwell claimed feminists, homosexuals and pro-choice advocates provoked God to “lift the curtain” of divine protection on America. Mr. Falwell later apologized.

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