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By ROBYN BLUMNER

© St. Petersburg Times, published March 19, 2000

The invoice is sitting on my desk and has been for weeks. The pest control company that had been protecting my circa-1926 wood-frame house from the scourge of termites was sold last year to the behemoth, Terminix. Since then, Terminix has been peppering my mail with notices to sign up for continuing treatment.

But Carla Virga is standing in my way.

Virga, a middle-aged secretary from California, was a victim of a slash-and-burn legal assault mounted by Terminix simply because she used the Internet to air a complaint. The company's approach to customer dissatisfaction is part of a disturbing national trend: kill the messenger and take the First Amendment down, too.

Virga came to consumer activism the hard way. She had purchased a home in 1991, relying on a Terminix report that the home was free of damage. In fact, the home had extensive damage. Out of anger over her personal experience with the company, Virga created a Web site (www.syix.com/emu) to inform fellow consumers. Its guestbook soon became crowded with other horror stories, submitted by visitors to the site, of Terminix and its parent company ServiceMaster.

On the Internet, Virga's small voice got loud. And it's this increasing power of consumers to inform others of whether a company's claims, promises and guarantees are real or hype that has corporate executives sweating through their power ties.

First, Terminix sued Virga in California, claiming she defamed the company. But after Virga easily won with the court finding that her Web site didn't contain falsehoods, Terminix reconnoitered and struck again, this time suing Virga in Tennessee for trademark infringement.

Trademark infringement?

It's bad enough that vocal consumers can be subject to frivolous SLAPP (strategic lawsuits against public participation) suits for defamation, though at least in such cases truth is a defense. But when a lawsuit alleges trademark infringement, the company is not objecting to the consumer's claims of poor service, just that he or she is telling others about it.

Here, the First Amendment directly comes into play. While private companies can't violate the Constitution, a statute can. If the courts interpret trademark protections too broadly and end up gagging consumer complaints, then the trademark statutes would constrain freedom of speech.

So far, at least, the courts aren't allowing things to go that far. When Bally Total Fitness health clubs sued Drew Faber over his "Bally sucks" Web site (www.compupix.com/ballysucks), the California federal court would have none of it and dismissed the suit. "The main remedy of a trademark owner is not an injunction to suppress the message but a rebuttal to the message," wrote the court, quoting an expert.

Other companies, including the electronics store Circuit City, and U-Haul truck rental are still in litigation against consumers with unflattering Web sites (www.circuitcitylawsuit.com and http://www.coyotes.org/consumer/uhell/index.html).

But while consumers will likely win in court, these harassment lawsuits are effective in scaring away advocates who don't have the resources to defend themselves. Paul Alan Levy, an attorney at the public interest group Public Citizen who represented Virga, says these suits are an attempt to shut down consumer activism and keep the Internet from being used effectively to promote consumer awareness.

In the Terminix case, the company initially sued Virga for any use of its name on her Web site, but later, after realizing how absurd that was, said its objection was only to its corporate name in the site's "meta tags." Experts describe meta tags as a kind of subject card catalog for the Internet. They're words, hidden in code, that allow search engines to find and rank relevant Web sites. The suit charges that by using "Terminix" in her meta tags, Virga was confusing the public and diverting its customers to her Web site.

Had Virga been a competing pest control company, say, Orkin, and was using Terminix in her meta tags solely to trick potential customers into taking a look at a rival Web site, then Terminix might have a case. But Virga's Web site was not commercially connected in any way to pest control. As Levy said in his briefs: "Virga is no more claiming to be Terminix than Terminix is claiming to be a pest, roach or rat," words that appear in the company's meta tags.

Consumer advocates must be allowed to use company names in meta tags; otherwise, their Web sites would be missed by people searching for consumer information on the company. Of course, that's precisely what these aggressive companies and their shark lawyers want.

Steve Good, vice president of Terminix, said that earlier this month the company dropped its suit against Virga. He said the company "didn't anticipate this" attention and that the suit was dropped "to turn our attention to harness the power of the Internet to serve out customers," by opening a Web-based customer care center. Still, the company has lost my business. I want a pest control company that exterminates bugs, not its customers' free speech.

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