## Facts

- Bosley Medical Institute, Inc. and Bosley Medical Group, S.C. (Bosley) provided hair-restoration services and owned the registered trademark “BOSLEY MEDICAL.”
- In the early 1990s, Michael Steven Kremer underwent a Bosley hair-replacement procedure and was dissatisfied with the results.
- In 1994, Kremer sued Bosley for medical malpractice and lost on summary judgment.
- On January 7, 2000, Kremer registered the domain name **bosleymedical.com** (and also registered **bosleymedicalviolations.com**, not at issue on appeal).
- Kremer told Bosley he intended to publicize his dissatisfaction and, in 2001, began posting negative content about Bosley at **bosleymedical.com**.
- Kremer did not sell goods or services through the website and did not earn income from it.
- The website contained links to other sites that featured advertisements for Bosley’s competitors, which Bosley argued made the use “commercial.”
- Bosley relied in part on a letter Kremer delivered to Dr. Bosley warning that once material spread online it would be “too late to stop,” which Bosley characterized as evidence of an extortion-like effort.
- Bosley sued asserting trademark infringement and dilution under the Lanham Act, a cybersquatting claim under the Anticybersquatting Consumer Protection Act (ACPA), and related state-law claims.
- The district court granted summary judgment to Kremer on all claims and granted Kremer’s California anti-SLAPP motion striking the state-law claims; Bosley appealed.

## Issues

1. Whether Kremer’s use of “Bosley Medical” as the domain name for a consumer-commentary website constituted actionable trademark “use in connection with” goods or services (and “commercial use”) under the Lanham Act for infringement and dilution.
2. Whether the district court properly granted summary judgment to Kremer on Bosley’s ACPA claim, given the ACPA requirement of a “bad faith intent to profit” and the status/scope of discovery and motion practice.
3. Whether Bosley’s state-law claims were properly stricken at the outset under California’s anti-SLAPP statute.

## Decision

- The Ninth Circuit **affirmed** summary judgment for Kremer on the Lanham Act infringement and dilution claims, holding the site’s noncommercial consumer commentary did not constitute actionable trademark use under the Lanham Act.
- The Ninth Circuit **reversed** summary judgment for Kremer on the ACPA claim and **remanded**, concluding it was error to dispose of the cybersquatting claim on summary judgment in the posture presented.
- The Ninth Circuit **reversed** the order granting Kremer’s anti-SLAPP motion striking Bosley’s state-law claims and **remanded** for further proceedings.

## Legal Principles

- Lanham Act infringement and federal dilution require trademark use tied to commercial activity; noncommercial consumer commentary, even when a mark is used in a domain name to identify the subject of the commentary, generally does not satisfy that threshold.
- A website devoted to consumer commentary about the goods or services associated with a mark, where the operator does not sell products/services and does not derive revenue from the site, is ordinarily outside Lanham Act liability for infringement and dilution based on that domain-name use.
- The presence of links on a commentary site to third-party pages that carry competitor advertisements does not automatically convert the operator’s use into commercial trademark use when the operator is not seeking commercial gain from the mark through the site.
- ACPA liability turns on a “bad faith intent to profit” from another’s mark; summary judgment is improper when the record is not developed enough, or when the district court resolves an ACPA claim outside the proper scope of the summary-judgment submissions.
- California’s anti-SLAPP procedure does not justify early striking of trademark-related state-law claims where the plaintiff’s theory about unauthorized domain-name use is not clearly without minimal merit and requires further factual and legal development.

## Conclusion

The Ninth Circuit held that Kremer’s use of Bosley’s mark in a domain name for a noncommercial consumer-commentary site was not actionable as Lanham Act infringement or dilution, but it reinstated Bosley’s ACPA and state-law claims because the cybersquatting and anti-SLAPP rulings were resolved prematurely and required further proceedings on remand.


Bosley Medical Group. v. Kremer, 403 F.3d 672 (2005)