Master Of His Domain

Attorney John Gibson represents plaintiffs in workers’ compensation claims. He maintains a Web site under the domain name “” for advertising and blogging about his law practice.

In February 2011 the Texas Department of Insurance sent him a cease and desist letter, arguing that his use of the words “Texas” and “Worker’s Comp” in the domain name violated a Texas statute. The regulation, which is meant to curb deceptive practices, says only the state can use those terms in combination.

Gibson filed suit alleging that the law violates the First Amendment’s guarantee of freedom of speech. The trial court dismissed the case, ruling that the domain name was commercial speech and entitled to less protection than other speech. The Fifth Circuit thought the question merited a second look.

The court acknowledged that a domain name was entitled to some degree of First Amendment Protection. A domain name may qualify as commercial speech if it advertises a specific product and is economically motivated – but even commercial speech merits some First Amendment protection.

The court rejected the state’s argument that the law was inherently misleading.

Unlike trademark infringement cases where the domain name uses marks to misidentify the source of the product, these words are in the public domain. There was no threat that Gibson was freeloading on anyone’s goodwill. Plus, Texas provided no evidence that the domain name had actually deceived anyone.

Even still, a state can regulate commercial speech, so long as the state has a substantial interest and the regulation is no more extensive than necessary to protect that interest.

The court acknowledged the state interest at preventing misuse of the Department of Workers’ Compensation names and symbols. But Texas failed to show that the regulation was narrowly tailored to this state interest

The court sent the case back to the trial court to determine whether the law, as applied to the domain name, was constitutional.

I wonder if LonestarStateWorkersComp was already taken. Might have saved him some legal fees.