By Stephen Young
By Stephen Young
By Stephen Young
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
You type the domain name, TaubmanSucks.com, one of the six "suck sites" he created to criticize The Taubman Co., a Michigan-based shopping mall developer behind The Shops at Willow Bend in Plano. You scroll through the Web site's content, a scathing indictment of the litigation tactics Taubman's lawyers employed to shut up Mishkoff and shut down his gripe sites. You're impressed by the quality of the writing, which considers no detail too trivial to record. And you click through the exhaustive retelling of Mishkoff's precedent-setting court victory as it escalated from a private trademark dispute to a cause célèbre for free-speech advocates.
"The Internet has empowered ordinary people to speak with a global reach," says Cindy Cohn, legal director of the Electronic Frontier Foundation, an advocacy organization promoting Internet-related First Amendment issues. "That empowerment has frightened corporations, who are now overreaching in their attempts to silence critical speech online."
Mishkoff, who can sound as self-effacing as he does self-righteous, says he didn't pick this fight. On the contrary, he claims that in 1999, he created the Web site ShopsAtWillowBend.com as an "unofficial fan site" for the upscale shopping complex after learning that The Taubman Co. planned to open the mall only three miles from his home. "I was excited they were building the mall," he says. "The Web site actually started out as a hobby. I liked the idea of building interactive maps that could guide people to the mall and create discussion groups about people's experience in the mall."
Not surprisingly, Taubman was skeptical of Mishkoff's "community service" motives and instead viewed his ShopsAtWillowBend.com as a commercial rip-off of its own official Web site, theshopsatwillowbend.com. On May 17, 2001, one of Taubman's attorneys, Julie Greenberg (who declined to comment), demanded that Mishkoff remove his fan site and stop using its related domain name. Failing that, she threatened to sue him for trademark infringement and cyber-squatting--a kind of Internet extortion committed by registering someone else's well-known trademark for the purpose of selling the domain name back to the original owner for a profit.
What Greenberg didn't realize was she'd threatened the wrong guy. Rather than shrink from the prospect of litigation, he was incensed by it. "Lawyers have this racket, and it is nothing short of legalized blackmail," he says. "Every time you give in to their threats, you reward them for their behavior and tell them to go do it to someone else."
Before he would consider pulling the plug on his Web site, he demanded that Greenberg provide him with some evidence he was violating the law, which she never did to his satisfaction. Unable--or unwilling--to pay for an attorney, he turned to the Internet to do his own legal research and learned just enough to be dangerous. "Because I was self-employed and had a flexible schedule, I thought I would be able to defend myself," he says. "And the 'net is a stunning resource not only on the law itself, but for people with similar problems who can steer you to resources they have tried."
Mishkoff grew convinced he was not infringing on Taubman's trademark. There was no likelihood of public confusion--the legal standard for infringement--because he'd posted a disclaimer on his fan site that warned viewers it was not the official mall site. Besides, there could be no infringement if his site had no commercial purpose and was simply being offered as a public service. Although his site provided advertising links to his Web design company as well as his girlfriend's custom shirt company, he removed both after Taubman complained the links were evidence his Web site had a commercial use. "I have not gotten a penny from the site and not asked for a penny," Mishkoff says. "I told her [Greenberg] that I was not attempting to sell the domain name for financial gain."
After several months of correspondence hardened their legal impasse, Greenberg filed suit, seeking a preliminary injunction that would shut down the fan site. But that only made Mishkoff mad, and he threatened to retaliate. If Greenberg persisted in suing him, he would create five new domain names including WillowBendMallsucks.com and TaubmanSucks.com and would use them to post details of the abusive litigation tactics to which he believed he was being subjected.
"As an individual with limited resources," he wrote her, "I have found this to be an effective technique when I feel that an organization whose resources are considerably greater than mine is trying to take advantage of me." He had employed similar tactics against one of his clients who refused to pay him and against a Fort Worth nightclub that he felt had treated him unfairly. "The Web is The Great Equalizer," he would later write. "I can tell my story to millions of people and it won't cost me a dime."