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UNITED STATES DISTRICT COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 01-2648 and 01-2725
THE TAUBMAN COMPANY LIMITED PARTNERSHIP,
Plaintiff-Appellee,
v. HENRY MISHKOFF AND WEBFEATS,
Defendants-Appellants.
On Appeal from Preliminary Injunctions of the
United States District Court
for the Eastern District of Michigan
Southern Division
REPLY BRIEF FOR DEFENDANTS-APPELLANTS
Introduction
In his opening brief ("MishBrf."), appellant Henry Mishkoff ("Mishkoff") argued, based on
established First Amendment law, and on an analysis of the language and legislative history of the
Lanham Act, for reversal of the injunctions against the websites that Mishkoff created to praise the
Plano, Texas shopping mall built by plaintiff-appellee Taubman Company Limited Partnership
("Taubman"), and to criticize Taubman for its tactics in this litigation. Mishkoff argued that the
Lanham Act does not extend to purely non-commercial websites such as his own, that the First Amendment
protects his right to post those websites and to use Taubman's trademarks in his domain names to
accurately portray the contents of the websites, and that his use of Taubman's trademarks in this
fashion is both nominative fair use and non-confusing under the eight-factor test applied by this
Court's decisions.
Taubman's brief ("TaubBrf.") ignores most of these arguments. For example, the term "nominative
fair use" does not appear in Taubman's brief, and "fair use" is mentioned only in passing. Instead, in
most respects, Taubman simply reiterates the arguments that it made below in obtaining preliminary
injunctions against a pro se defendant, which were anticipated in Mishkoff's opening brief and need
not be further rebutted now. In several other respects, Taubman invents new reasons for the
injunctions, which were not adopted by the court below or even argued there, or bases its defense of
the decision below on facts that are not in the appellate record. For example, Taubman makes repeated
reference to alleged violations of its copyright, even though there is no evidence of this in the
appellate record; Taubman did not even allege a copyright violation until March 2002, several months
after the appeals were filed. We have not moved to strike these references in Taubman's brief but
simply note some examples in the course of the argument that follows, and urge the Court to disregard
the pervasive factual statements that lack a record citation.
[Note: Taubman takes issue with Mishkoff's reliance on the rule requiring de novo review in First
Amendment cases. TaubBrf. 14. Neither of the cases it cites calls into question the applicability of
Bose Corp. v. Consumers Union, 466 US 485 (1984), to this case. There were no First Amendment
arguments in Brookfield Communications v. West Coast Entertainment, 174 F3d 1036 (CA9 1999),
and the decision says nothing about the impact of the First Amendment on the standard of review;
Dallas Cowboys Cheerleaders v. Pussycat Cinema, 604 F2d 200 (CA2 1979) was decided before
Bose.]
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