FC: Men's hair loss company tries to grab critic's domain name

[Declan McCullagh <declan () well com>]

**********

Date: Wed, 22 Aug 2001 12:12:30 -0400
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: Man bites dog

Declan:

Here is a little story that provides an interesting footnote to Michael 
Geist's recent study showing how companies can get an extra advantage in 
enforcing their trademark claims against domain name registrants by 
selecting the UDRP provider that is most favorable to complainants.   What 
does a company do when it can't even win in the UDRP?

Bosley Medical Institute is a national company, based in California, which 
preys on insecurities about aging by persuading men and woman who cannot 
abide the thought of a receding hairline to get cosmetic surgery.  Michael 
Kremer is a dissatisfied customer who is using the domain names 
bosleymedical.com and bosleymedicalviolations.com to post the results of 
various medical board proceedings and media reports that have led to 
Bosley's paying large fines and having his medical license placed on five 
years' probation.   Bosley has been disciplined in some twenty states where 
he is licensed to practice.  A copy of his consent order with Maryland's 
medical board, which describes Bosley's practices in some detail and 
contains Bosley's admission of the facts,  is web-posted at 
http://www.docboard.org/md_orders/D4836201.120.PDF.

Bosley went to WIPO to seize the domain name bosleymedical.com, but even in 
this favorable forum the arbitrator ruled that the noncommercial use of 
bosleymedical.com to publicize grievances against Bosley was perfectly 
legitimate, and that Bosley's UDRP complaint was nothing but an example of 
"cyberbullying." 
http://arbiter.wipo.int/domains/decisions/html/2000/d2000_1647.html.

Completely unchastened by this reprimand, Bosley has now sued Kremer under 
the cybersquatting statute and the Lanham Act, seeking injunctive relief 
and millions of dollars in damages.  And, rather than suing in California 
where Bosley is based, and where Kremer lives, it has sued him in Illinois, 
trying to put him at a disadvantage by making him defend 2000 miles from 
home.  Although UDRP proceedings are not binding, and parties who lose in 
the UDRP are entitled to de novo review in federal court, the complaint 
does not even acknowledged the adverse ruling.  This is the first occasion 
of which we are aware in which that rara avis - -  a complainant who lost 
in the UDRP - -  has nevertheless sued under the Lanham Act.

The complaint also alleges libel, although so far as we are aware, Bosley 
never claimed libel  against Dateline NBC, U.S. News and World Report, and 
other outlets when they publicized the medical board 
investigations.  Dateline did its own "hidden camera" investigation of 
Bosley as well.

We have just filed a motion to dismiss the lawsuit, arguing among other 
things that the case belongs in California, that the trademark claims are 
meritless, and that a California company cannot avoid the California SLAPP 
statute by suing California residents in another state.  Our brief is 
web-posted at http://www.citizen.org/litigation/briefs/bosley.htm.

A list of the cities where Bosley operates is available on Bosley's own web 
site at http://www.bosley.com/men/location.htm.  A Public Citizen press 
release describing the case is posted at www.citizen.org/press/pr-lit40.htm.



Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html




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