A blogger has taken legal action to defend his right to criticise bailed-out investment bank Goldman Sachs. The bank has threatened to sue over trade mark infringement, but the blogger has launched his own legal campaign to defend himself.
Goldman Sachs was bailed out with $10 billion of US public money last year under the Troubled Asset Relief Program (TARP). It made its first quarterly loss for nearly 10 years at the end of 2008 and had its credit rating reduced by agency Moody's.
Blogger and investment advisor Mike Morgan has registered the domain name goldmansachs666.com and is using it for a blog that criticises the investment bank and its practices.
Goldman Sachs wrote to Morgan asking him to stop using the domain name and claiming that his use of it interfered with its rights.
"Your use of the mark GOLDMAN SACHS violates several of Goldman Sachs' intellectual property rights, constitutes an act of trademark infringement, unfair competition and implies a relationship and misrepresents commercial activity and/or an affiliation between you and Goldman Sachs which does not exist and additionally creates confusion in the marketplace," said a letter sent to Morgan by law firm Chadbourne & Parke.
The site, though, makes it clear that it is not affiliated to Goldman Sachs. Its first words at the top of the web page read: "This website has NOT been approved by Goldman Sachs, nor does this website have any affiliation with Goldman Sachs".
Morgan is uncompromising on the site in his criticism of the financial giant. "I believe this company is evil and should not exist. We need to begin to break up companies that have as much control over world finances as Goldman Sachs," the site says.
He has responded by filing a suit whose aim is to assert his right to use the domain goldmansachs666.com. "David didn't beat Goliath by waiting till Goliath threw the first punch, so we thought that strategy worked pretty well and we decided to follow it," he said on the site.
Morgan's lawsuit asks the US District Court for the Southern District of Florida to declare his use of the domain name lawful and not in violation of trade mark law.
Domain name disputes are often referred to the World Intellectual Property Organisation's dispute resolution process. Though it has in the past found against people running sites using others' trade marks, it has said that legitimate protest sites should be protected.
"The [WIPO] Panel is cognizant of the importance of protecting protest sites that use a trademark to identify the object of their criticism," said a ruling in which it handed control over redbullsucks.com to caffeinated drinks maker Red Bull because the site hosted there sold a rival drink and was not a legitimate protest site. "The 'legitimate interest' and 'bad faith' factors should adequately insulate true protest sites from vulnerability under the Policy."
Taking domain name disputes to court invokes trade mark laws, not the rules followed by WIPO. It also makes an award of damages possible, unlike WIPO proceedings. However, like WIPO, US courts have upheld the rights of non-commercial 'gripe sites' in the past when there is no risk of confusion.
Morgan's site clearly protests at many aspects of Goldman Sachs' behaviour, though he appears to admit on the site that he has a financial interest in the company's downfall. 'Short selling' is the process of betting on a fall in a company's share price. "Yes, I am short Goldman Sachs stock," said Morgan on the site.
Goldman Sachs announced a profit for the first three months of this year of $1.8 billion, though due to a change of accounting period those results excluded a loss-making December, according to reports. The company has announced its intention to raise private capital and pay back government loans.
A .pdf detailing Morgan's lawsuit can be found here.
Copyright © 2009, OUT-LAW.com
OUT-LAW.COM is part of international law firm Pinsent Masons.