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November 5, 2001

John H. Midlen, Jr.

Re: Cyberbullying

Dear Mr. Midlen:

I am writing for the twin purpose of acknowledging receipt of two demand letters, dated October 26, 2001, that you sent to me by overnight delivery service, and to reject the demands made in those letters.

I am the author of a web site, which as you note uses the domain names and, that parodies your client, Jerry Falwell. The parody both reminds the public of your client's hateful remarks about the causes of the September 11 terrorist attack on the United States, and evokes his criticism of the hypocritical attitudes that some Christians display toward compliance with biblical dictates, by suggesting that he himself ignores a significant biblical dictate. This is a completely non-commercial web site, which exists for the sole purpose of expressing, through a parody, my opinion that your client is a jerk.

Confirming my opinion about your apparently humorless client is the letter that you have sent me on his behalf, trying to suppress my criticism by invoking completely spurious claims under the trademark, cybersquatting and privacy laws. Let us be clear. Your client is, as you say, a "world famous television evangelist", although personally I think infamous or notorious would be a better way to say it. He is "nationally known . . . and . . . internationally known" for the very characteristics that are parodied on my web site. He is a public figure, and as the Supreme Court reminded him the last time he tried to sue over a parody, he cannot succeed in a claim based on a publication that makes fun of him unless he proves both falsity and actual malice, under the standards of the New York Times v. Sullivan standard. You do not assert that anything on my web site is false. If your client's feelings are hurt as a result of being parodied on my site, that is something he is going to have to learn to live with. As Harry Truman used to say, if you can't stand the heat, get out of the kitchen.

Your letter claims that my use of your client's name creates a likelihood of confusion about the source and origin of my web site. Now I will confess that your client preys upon gullible people; but it is impossible to believe that even your client's devoted followers would believe, upon reaching my parody site that it represents anything other than a parody of your client.

Moreover, it is well established that the use of a domain name denoting the subject of non-commercial criticism, even if that name is trademarked, is a completely fair use of the name and is not actionable under the trademark laws, under the new cybersquatting law, or under the common law of Illinois. I would call your attention to the case of Northland Insurance Company v. Blaylock, in which an insurance company sued a disgruntled consumer who used the domain name as the address to post his complaints about the failure of the company to pay him what he felt he was owed on a claim for a loss on his boat. Northland had registered, which it used the name for its web site, much as your client registered more than three years ago and has used it to promote his business, which consists of making money from his religion. The United States District Court made short work of Northland's argument that Blaylock had violated either the Lanham Act or the Cybersquatting Act. Moreover, a number of courts have recognized the First Amendment implications of the use of trademark law to try to quash criticism of the holder of a trademark.

In short, the domain names are not for sale, they have never been for sale, and I have no interest in selling them to you or to anybody else. I have no obligation to give them to you, and I do not intend to give them to you.

Your letter threatens both to invoke the Uniform Dispute Resolution Policy before the World Intellectual Property Organization, and to sue me in a federal court. Let me point out to you that if you file a lawsuit against me, that action alone could preclude the UDRP procedure from going forward, under paragraph 18 of the procedure. And speaking of hypocrisy, wasn't it Jerry Falwell who was complaining just last November about the "legions of lawyers" who were trying to use the courts to "stretch laws in their favor" to overturn the supposed democratic mandate of the people in Florida? And wasn't it Jerry Falwell who has been complaining about "radical homosexual lawyers" trying to find "liberal judges" to advance their personal agendas? It seems your client isn't above using radical lawyers of his own stripe to advance his own social agenda by trying to find conservative judges who may cater to him by suppressing the democratic rights of other people.

Finally, if your client sues me as threatened, his lawsuit will be entirely frivolous and I intend to ask my attorney to seek an award of attorney fees both against your client and against his lawyer. I also reserve the right to sue your client and his lawyer for malicious prosecution. Because I live and work in Illinois, and there is nothing about my web site that would justify you suing me anywhere else, I assume that lawyer will be somebody other than yourself, but I would ask you to advise your successor of the risk that he is undertaking.

Sincerely yours,

Gary Cohn

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