A well-respected lawyer has a simple message for corporations: stop suing disgruntled customers who start websites to air their grievances. Though William Pecau of Steptoe & Johnson thinks that online gripers are “self-righteous narcissists with time on their hands,” he also realizes that “shutting down a gripe site generally is not easy, often cannot be done, and often is counterproductive.” Pecau goes on to explain exactly why most online gripers are safe from over-hyped takedown notices…

..the target/trademark owner typically bases its objection on trademark infringement and related federal and state law claims designed to protect trade identity and reputation, such as dilution, unfair competition, anti- cybersquatting, deceptive trade practices, defamation, and the like. However, there are significant difficulties with these claims. For the trademark infringement, unfair competition, and other claims that require a showing of likely confusion, there is the obvious problem that in most cases people are not likely to believe that the trademark owner has sponsored or approved a site that is devoted to disparaging the trademark owner, its brand, and its products or services – particularly when the site contains disparaging qualifiers such as “hate,” “bad,” or “sucks.” In other words, there is no confusion. Also, the gripe site’s use of the target’s brand is almost always nominative and a fair use. The gripe site wants its readers to know its targets; it does not desire any confusion or mistake as to whom it is disparaging. This clarity of victim and purpose also makes it very difficult for any dilution claim to succeed – at least a claim of dilution of the distinctiveness of the mark.

So what can corporations do? First, realize that we love, LOVE posting your adorable cease and desist letters, so if you’re going to send one, please make it nice and pleasant. You can also try buying up permutations of yourcompanysucks.com, but that doesn’t work. As an absolute last resort, you can provide good customer service.

Finally, (Ed. emphasis ours, clearly, this is a contingency option) the target might seek to engage the operator of the gripe site to find out just what his/her problem is and see if it can be rectified. This would be the cleanest, easiest, and cheapest solution. It might not work, but it has little downside risk and might, if not immediately successful, attenuate the ferocity of the attacks and might in the long run hasten the end of the site, by causing its operator’s interest to wane.

Gripe Sites: Sue or Stew (pdf) [Law Journal Newsletters—The Intellectual Property Strategist via Consumer Law & Policy Blog]
(Photo: Skelekitten)

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