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Jews for Jesus v. Brodsky (D.N.J.)

Case Conclusion Date: 12.20.2001

Practice Area: Trademark Infringement

Outcome: Plaintiff granted preliminary injunction; settlement reached

Description: From a law journal article by attorney Jonathan Hudis: The Jews for Jesus court found that Brodsky's use of the JEWS FOR JESUS mark as a domain name was a commercial use because his web site: (i) intended to intercept, through deceit and trickery, the audience sought by JFJ; (ii) conveyed the impression that JFJ was the site's sponsor; (iii) commercially disparaged JFJ; (iv) prevented JFJ from exploiting its own mark; (v) hyperlinked to the Outreach Judaism site, which provided its own viewpoints and offered products and services for sale; and (vi) prevented at least some Internet users from reaching its own web site. In a mere passing footnote, the court stated that the parties"dispute d[id] not implicate rights granted by the First Amendment of the United States Constitution." From the U.S. Court of Appeals for the Fourth Circuit: Although the appellate courts that have adopted the initial interest confusion theory have only applied it to profit-seeking uses of another's mark, the district courts have not so limited the application of the theory. Without expressly referring to this theory, two frequently-discussed district court cases have held that using another's domain name to post content antithetical to the markholder constitutes infringement. See Planned Parenthood Fed'n of Am., Inc. v. Bucci, 1997 U.S. Dist. LEXIS 3338, No. 97 Civ. 0629, 1997 WL 133313 (S.D.N.Y. March 24, 1997), aff'd, 152 F.3d 920 (2d Cir. 1998) (table) (finding use of domain name "" to provide links to passages of anti-abortion book constituted infringement); Jews for Jesus v. Brodsky, 993 F. Supp. 282 (D.N.J. 1998), aff'd, 159 F.3d 1351 (3d Cir. 1998) (table) (finding use of "" to criticize religious group constituted infringement). We think both cases were wrongly decided to the extent that in determining whether the domain names were confusing, the courts did not consider whether the websites' content would dispel any confusion. In expanding the initial interest confusion theory of liability, these cases cut it off from its moorings to the detriment of the First Amendment. Lamparello v. Falwell, 420 F.3d 309, 318 (4th Cir. Va. 2005) From the the U.S. District Court for the Eastern District of Michigan: [T]he implication in ... Jews for Jesus that the "commercial use" requirement is satisfied any time unauthorized use of a protected mark hinders the mark owner's ability to establish a presence on the Internet or otherwise disparages the mark owner is flawed. Ford Motor Co. v. 2600 Enters., 177 F. Supp. 2d 661, 664 ( E.D. Mich. 2001)

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