Web Site Mocking Home Developer Can Remain on the Internet

Raintree Homes Drops Lawsuit Against Pennsylvania Man

Angered by Company’s Business Practices

WASHINGTON, D.C. – A home developer has given up in its attempts to silence a fuming homeowner who had established a parody Web site mocking the company. Raintree Homes, Inc. withdrew its lawsuit today from the U.S. District Court for the Middle District of Pennsylvania rather than pursue its faulty arguments that its trademark had been violated and that it had been defamed.

Carl Silverstein, an information technologies professional, says he was duped by developer Gene Percudani, who runs Raintree, into paying $143,000 for a $90,000 home. Furious, Silverstein created a Web site and registered it under the domain names www.1800whyrent.org and www.1800whyrent.net – a takeoff of www.1800whyrent.com, Raintree’s Web site. On the parody site, which can be accessed by either domain name, Silverstein mimics Raintree’s Web site format, replacing Raintree’s promotional phrases with such things as “We Will Suck You Dry” and “We-Screw-You.”

The Public Citizen Litigation Group, a nonprofit public interest group that has a history of defending free speech on the Internet, represented Silverstein and argued that his Web site is protected by the First Amendment and that it does not violate trademark law.

Companies can claim trademark infringement only if their mark has been used in a misleading way to profit from consumer confusion. This had not occurred in this case – Silverstein’s site is non-commercial, has no advertising and sells no goods. It would be impossible for anyone visiting the site to believe it was Raintree’s site.

“Raintree’s arguments on trademark violation did not hold water, and numerous cases indicate the First Amendment protects Mr. Silverstein’s online speech,” said Paul Alan Levy, an attorney with Public Citizen. “The company would have lost this case if it had pursued it, so it was wise to pull out now.”

Raintree had also argued that Silverstein’s site was defamatory. Raintree became a public figure after media coverage of a class action lawsuit against the company and other consumer complaints. To show defamation of a public figure, Raintree would have to prove that Silverstein acted with malice and a reckless disregard for the truth, which it failed to do.

Public Citizen also worked on the case with Harrisburg, Pa., attorneys Robert E. Kelly Jr. and Marc A. Moyer of Kelly, Hoffman & Goduto. Public Citizen’s orginial brief is on the Web at http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=6207.

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