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Bosley Medical Institute v. Kremer, No. 04-55962 was a case in which the United States Court of Appeals for the Ninth Circuit affirmed, reversed and remanded the rulings of the United States District Court for the Southern District of California, holding that defendant, Michael Kremer, could be held liable for contributory and vicarious copyright infringement, affirming the District Court holding.

Background
Bosley Medical Institute is the plaintiff and the owner of the trademarks Bosley, Bosley Medical, and Bosley Healthy Hair, as well as other trademarks. Boston Medical Institute was founded L. Lee Bosley, M.D. and is a "Delaware Corporation which manages and markets hair transplantation, restoration, and replacement services tot he public."

Michael Steven Kremer is the defendant and a former patient of Bosley Medical Institute and was dissatisfied with his experience with the company. Kremer was the former patient of Dr. David Smith in Seattle, Washington and received hair replacement services in which he was unhappy with the results. Kremer filed a medical malpractice lawsuit against Bosley Medical but the case was dismissed on summary judgment.

On January 7, 2000 Kremer registered the www.BosleyMedical.com domain name, as well as www.BosleyMedicalViolations.com, which was not challenged by Bosley in this case. Kremer then proceeded to go to the Bosley Medical office in Beverly Hills, California five days after registering the domain and delivered a letter to Dr. Bosley, the founder and President of Bosley Medical. Contained within the letter was the following text:

Kremer's site www.BosleyMedical.com summarized the Los Angeles County District Attorney's 1996 investigative findings about Bosley among other information that was highly critical of Bosley. Kremer did not earn any revenue from the website neither did he sell any goods or services sold through the website. However, the website does contain a link to BosleyMedicalViolations.com, another site by Kremer that links to the alt.baldspot newsgroup that contains advertisements for companies that compete with Bosley, and Public Citizen website, which is an organization that represents Kremer in the case.

Procedural background
Defendant Bosley brought a suit against Kremer alleging trademark infringement, dilution, unfair competition, various state law claims, and a libel claim (eventually settled) in which it was ruled that Kremer's use was noncommercial and unlikely to cause confusion. A summary judgment for Kremer on the federal claims was entered by the district court which also dismissed the state law claims under California's anti-SLAPP (Strategic lawsuit against public participation) statue.

Bosley appealed to United States Court of Appeals for the Ninth Circuit.

Ninth Circuit appeal
On appeal, the Ninth Circuit affirmed the District Court's entry of summary judgement in favor of Kremer, reversed the anti-SLAPP motion to strike the state law claims and remanded the ACPA claim for further proceedings. The Ninth Circuit issued its opinion on February 12, 2001, affirming in part, reversing in part and remanded the District Court's decision.

Trademark Infringement and Dilution Claims
The Circuit Court ruled that "Bosley cannot use the Lanham Act either as a shield from Kremer's criticism, or as a sword to shut Kremer up." The Court recognized that that the Lanham Act was to be applied in commercial contexts and does not prohibit all unauthorized uses of a trademark. They concluded that any harm that came to Bosely was from Kremer's criticism of their services rather than from a competitor's sale of a similar product under Bosley's trademark because according to the Court "no customer will mistakenly purchase a hair replacement service from Kremer under the belief that the service is being offered by Bosley.

Anticybersquatting Consumer Protection Act
Using the the Anticybersquatting Consumer Protection Act ("ACPA") passed by Congress in 1999, the Circuit Court reversed the district courts dismissal of Bosley's ACPA claim. The district court dismissed the claim "for the same reasons that it dismissed the infringement and dilution claims - namely, because Kremer did not make commercial use of Bosley's mark."

The Circuit Court found that the district court was wrong in applying the commercial use requirement to Bosley's ACPA claim. The district court should have instead focused on "whether Kremer had a bad faith intent to profit from his use of Bosley's mark in his site's domain name"

The Circuit Court also found that the district court was wrong in granting summary judgement for Kremer on the ACPA claim due tot he fact that the court did not notify Bosley that it would rule on this claim and in turn did not provide them a chance to conduct discovery on the issue.

California's Anti-SLAPP Law
The Circuit Court found that in an infringement lawsuit by a trademark owner over a defendant's unauthorized use of the mark as his domain, the defendant's free speech rights is not necessarily impaired. The Court reversed the district court's granting Kermer anti-SLAAP motion to strike Bosley's state law trademark claims because they had ruled that Bosley was seeking to limits Kremer's free speech.