Could a trademark lawsuit filed by Terminix silence Web criticism of corporations?
By Jim Hanas
DECEMBER 20, 1999: In 1991, Carla Virga and her husband bought their dream home, a $185,000 ranch-style house in Yuba City, California. A house that "was going to be the last home of our lives," says the 50-year-old mother of four.
Before the Virgas closed the deal, they had the house inspected by Terminix, whose inspector gave it a clean bill of health. But according to Virga and a later inspection by Terminix the pest control company's initial inspection failed to report instances of water-related structural damage. (Terminix says the discrepancy between its two inspections was due to a clean-up that revealed more "visible" damage, which is what the company is required to report.) The Virgas sued the seller, the real estate agent, and Terminix, but lost. The couple was ordered to pay part of the defendants' court costs and, facing court costs of their own, eventually declared bankruptcy.
Virga, feeling like she'd gotten a raw deal, sought high and low from the California Department of Consumer Affairs to the Federal Trade Commission for a remedy. Finding none, she turned to the Internet.
"I tried everything," Virga says. "Nothing worked. So I decided to do a Web site to let people know that when you have a contract it doesn't mean anything."
In September 1997, Virga an Internet neophyte posted a site detailing her experiences. Since then, her site has grown substantially and now includes accounts from both employees and consumers about their dealings with Terminix and its parent company ServiceMaster, as well as links to pages detailing pending litigation against both. Virga says her site has received 16,000 visitors in the last two years, compared to the 40,000 visitors Terminix' official site receives each month.
Nonetheless, in October Terminix filed suit against Virga in U.S. District Court in Memphis, charging her with trademark infringement for using the Terminix name and those of its affiliates and parent company on her site.
Virga has been down this road before. This is the second time in two years that the Memphis-based pest control company has sued Virga over her Web site. Before launching the site in 1997, Virga sent a letter to ServiceMaster's then-president and CEO Carlos H. Cantu explaining her plans. In a response from general counsel W.B. Mallory, she was told, in no uncertain terms, that the company intended to have her "enjoined from continuing to publish such statements and accusations and to recover for all injuries and damages which it incurs as a result thereof."
Six months later, Terminix sued Virga in California, alleging her site was defamatory. Under California law, defendants in so-called SLAPP (Strategic Lawsuits Against Public Participation) cases can file a motion to strike the complaint, which then requires the plaintiff to establish the probability that the complaint will be upheld before the suit moves forward. According to the judge in the case, Terminix failed to present a convincing case for defamation, and the company was ordered to pay Virga's court costs and legal fees.
The current suit brought by ServiceMaster and all of its subsidiaries, including Terminix makes no mention of defamation. Instead, it relies on an interpretation of trademark law that, according to attorneys for Virga, could have grave implications for free speech on the Internet especially speech critical of corporations.
"If ServiceMaster's view is upheld," says Virga's local counsel Lucian Pera, "the notion that I can't use their name because it's a trademark basically means that they can have control over what is said about them on the Internet. It gives them a sort of veto power over criticism about them that we wouldn't dream of them having in any other medium."
Steve Good, Terminix' vice president of marketing, disagrees.
"People tend to get a little bit off-center on this," Good says. "It's not about content, and it's not about opinion. It's purely about the use of our trademarks."
In particular, the suit is about Virga's use of ServiceMaster's various trademarks in her site's "meta tags."
A meta tag is a line of HTML code that is not seen when a page is viewed through a browser (although it can be seen on most browsers by viewing the "page source"). Meta tags can include a variety of information about a page, including a brief description of its contents or keywords to let surfers know what the page is about. Some online search engines use keywords appearing in meta tags to index sites while others do not. In its suit, ServiceMaster claims that Virga is illegally using its affiliated trademarks in meta tags to divert traffic to her site.
"If you put 'Terminix' in any of the search engines, her site will come up," says Good. "And it's through her use of our trademarks in her meta tags, which we believe is an illegal use of our trademarks, that that happens."
The suit also objects to Virga's use of ServiceMaster's affiliated trademarks as banners or headings throughout the site, although Good says it is not their use in criticism to which the company takes exception.
"There is certainly some content that we strongly take exception with, because it's not totally accurate," he says. "But she is certainly entitled to her opinions and interpretations of events. And while we take strong exception with the content, we're not trying to suppress it. To the extent that it is banners [that] use the trademark names, we are taking exception with that. But to the extent that she is referencing us in opinions and copy, obviously there is nothing we can do about that, nor would we try."
Whatever the suit's intent, it nearly forced Virga to dismantle her site.
"They almost won this one," she says. "They almost succeeded in having me pull it. I can't afford to go to Tennessee and hire another attorney."
Instead, Virga's cause has been taken up by the Public Citizen Litigation Group, the legal arm of Ralph Nader's D.C.-based Public Citizen organization, which is defending the case pro bono.
"The ability of a company to prevent somebody from criticizing it would be frightening," says lead attorney Paul Levy, explaining why Public Citizen decided to take on the case.
Aside from jurisdictional arguments objecting to the fact that Virga, who has never been to Tennessee, is being sued in Memphis, her defense rests on the First Amendment protections enjoyed by non-commercial speech.
Levy says that, while there have been cases in which companies have been enjoined from using the trademarks of commercial competitors in the meta tags of their Web sites thus drawing their competitors' customers to their sites no such precedent exists for non-commercial uses, especially in commentary.
"The thing that makes this close to frivolous is that she's not commercial," Levy says. "Given the fact that she has a non-commercial site, it would be earth-shattering if they were to win this case, because generally speaking trademark law does not apply to non-commercial expressions like hers, number one. And number two, the protection of the First Amendment is at its apogee with respect to non-commercial expressions."
Good, however, says the fact that Virga's site isn't commercial is beside the point.
"It's the fact that she's using our trademarks for deceptive purposes," he says. "This just happens to be on the Internet. We are very vigilant in protecting the trademarks of Terminix. If someone is using our trademark without permission, we will obviously seek to rectify that. It's like putting up a set of golden arches on the roadside and when you go inside there's no McDonald's and there's no food."
The case is currently pending, although Virga's attorneys have filed both a motion to dismiss and a request for an injunction that would prevent ServiceMaster from filing further lawsuits against her.
In a memorandum filed by Virga's lawyers, they urge the court to prevent ServiceMaster from continuing to use the legal system in what is characterized as "an attempt to silence one of their critics."
"That's simply not true," says Good of the latter charge. "Obviously the site represents one person's opinion. It represents one person's interpretation of events. Just like someone who may choose to complain to the Better Business Bureau, we can't suppress that. We're not trying to suppress that. This is about infringement of our trademark. Whenever and wherever we're made aware of any infringement of our trademark, no matter how big or how small, we pursue it."
And why, then, has it taken two years for the company to raise its trademark concerns?
"From time to time, obviously, it may take time to develop case law, to develop a little bit more of a case," Good says.
Carla Virga's Web site can be accessed at www.syix.com/emu/index.htm
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