Lex 8256: The Law in
Gripe sites (Melissa)
I. Introduction to
What is a Gripe site:
Gripe sites are websites developed typically by an individual to
express dissatisfaction and criticism about an entity (or sometimes a
fellow individual, usually a political figure).
For examples of Gripe sites please
and click on the logos on the left hand side of the site, under
Featured Gripe Sites. Note: This is a fun exercise; you do not
need to click on them all or read through the entire sites.
*Question: Which one stood out
to you most?
Overview of Legal Issues Involving Gripe Sites
Gripe sites are a form of protected
speech under the first amendment and are considered fair use as a form
of criticism under trademark law. However, much litigation has arisen
involving gripe sites and their domain names. Three legal claims
predominate. The first is whether a gripe site as a whole, and/or its
domain name, amount to trademark infringement. The second is whether a
gripe site’s domain name, encompassing a registered trademark,
constitutes trademark dilution. The third is whether a gripe site’s
domain name is actionable under the Anticybersquatting Consumer
Protection Act (ACPA), or triggers domain name transfer under the
Uniform Domain Name Dispute Resolution Policy (UDRP). Many gripe-site
cases encompass several of these legal issues, as well as the
underlying premise of freedom of speech. The key provisions to focus on
for this topic are the ACPA and the UDRP.
*Question: What are the
distinctions between the UDRP and the ACPA? What do you need to
show to get relief under one that you do not need to show to get relief
under the other? Are the distinctions relevant?
In the UDRP context, controversies have turned on
whether a gripe site’s domain name is properly seen as "identical or
confusingly similar to" complainant's trademark, as the UDRP requires.
of UDRP law prepared by the World
Intellectual Property Organization in 2005 (it's here,
but you don't need to read it) stated that the
view" was as follows:
A domain name consisting of a trademark and
term is confusingly similar to the complainant’s mark . . . . because
the domain name contains a trademark
and a dictionary word; or because the disputed domain name is highly
similar to the trademark; or because the domain name may not be
recognized as negative; or because the domain name may be viewed by
non-fluent English language speakers, who may not recognize the
negative connotations of the word that is attached to the trademark.
Stores, Inc. v. Richard MacLeod (WIPO 2000).
The synthesis stated that the "minority view" was as follows: "A domain
name consisting of a trademark and a negative
term is not confusingly similar because Internet users are not likely
to associate the trademark holder with a domain name consisting of the
trademark and a negative term."
Martin Corporation v. Dan Parisi
*Question: What are your
thoughts on which rule should govern? Why?
Interesting Commentary and News
Entities are taking an active role in
attempting to protect their TM interests from gripe site harm, and some
entities are actually utilizing gripe sites as a way to improve.
Skim over: Strategies
for Blocking Internet “Gripe” Sites and Internet
Detroit sets a new precedent in gripe site cases to
protect freedom of speech.
Protects Blogger Gripe Sites! (Aug. 16, 2010)