Lex 8256: The Law in Cyberspace Seminar

Gripe sites (Melissa)

I. Introduction to Gripe Sites

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 visit http://www.webgripesites.com/resources.htm 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?

II.     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.

    A synthesis 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 "majority view" was as follows:
A domain name consisting of a trademark and a negative 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.
Read: Wal-Mart 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."

Read: Lockheed Martin Corporation v. Dan Parisi (WIPO 2000).

*Question: What are your thoughts on which rule should govern? Why?

III.    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 Complaint Sites
    Detroit sets a new precedent in gripe site cases to protect freedom of speech.

Read: Court Protects Blogger Gripe Sites! (Aug. 16, 2010)