## Facts

- Bally Total Fitness Holding Corporation operated health clubs and owned federally registered trademarks and service marks in “Bally,” “Bally’s Total Fitness,” and “Bally Total Fitness,” including stylized forms.
- Andrew S. Faber, a website designer, created a webpage titled “Bally sucks” within the “compupix.com” domain to host complaints about Bally’s health-club business.
- The page displayed Bally’s mark with the word “sucks” superimposed and stated “Bally Total Fitness Complaints! Un-Authorized.”
- The “Bally sucks” page was located at “www.compupix.com/ballysucks,” within a domain that also hosted other unrelated pages, including a nude-male photography site and Faber’s web-design services page.
- Bally alleged the “Bally sucks” page initially linked to the nude-male photography site; the link was removed before the court ruled on Bally’s request for temporary relief.
- Bally sued under the Lanham Act and related law for trademark infringement, unfair competition, and dilution based on Faber’s use of Bally’s marks on the criticism site.
- The court denied Bally’s application for a temporary restraining order; Bally’s later summary-judgment motion was denied; Faber then moved for summary judgment on all claims.

## Issues

1. Whether use of Bally’s marks on a clearly critical “Bally sucks” website created a likelihood of confusion as to source, sponsorship, affiliation, or endorsement, supporting Lanham Act infringement and unfair-competition claims.
2. Whether Faber’s use of Bally’s marks on the criticism site constituted actionable dilution under the federal dilution statute, including whether the use was “commercial” within the statute’s scope.

## Decision

- The court granted Faber’s motion for summary judgment on all claims and dismissed the action.
- The court held Bally failed to show a likelihood of confusion as a matter of law because the site’s content and labeling made clear it was an unauthorized criticism site and the parties’ goods and services were unrelated.
- The court held the dilution claim failed because the criticism site constituted noncommercial speech and was not a use “in connection with” the sale or advertising of goods or services on that site.

## Legal Principles

- Lanham Act infringement and unfair competition require a valid mark and a likelihood of consumer confusion as to source, sponsorship, affiliation, or endorsement.
- Where parties’ goods and services are unrelated, the confusion inquiry centers on whether a reasonably prudent consumer would likely believe the defendant’s site is affiliated with or sponsored by the trademark owner.
- A “sucks” title, prominent critical presentation, and explicit “unauthorized” labeling can negate likelihood of confusion as a matter of law.
- Federal trademark dilution liability generally requires commercial use of a mark; noncommercial critical commentary using a mark to identify the subject of criticism falls outside the statute’s reach.
- Trademark law cannot be used to suppress critical commentary; the appropriate response to criticism is rebuttal speech rather than injunctive suppression absent actionable confusion or commercial misuse.

## Conclusion

The court concluded that a plainly labeled, unauthorized online gripe site using a company’s mark to identify the target of criticism did not create actionable confusion and, as noncommercial commentary, did not support a federal dilution claim; summary judgment was entered for the site operator.


Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161 (C.D. Cal. 1998)