Did you ever wonder how many large companies register their own “sucks” domain names (as in “microsoftsucks.com” or “AIGsucks.com”) in order to prevent someone else from doing so? Like, some unfriendly nasty that wants to use the site to bash the company?
How many “CIOs” (“chief information officer,” for the uninitiated; don’t blame yourself if you didn’t know this), wish they had registered variations of their companies’ names before the “gripers” got ahold of them? Many, I suspect. Check out ebaysucks.com or alitaliasucks.com for example. Nasty stuff, for sure. Not good corporate publicity, for sure.
Bet the folks at eBay and Alitalia wish they’d grabbed these domain names before they were picked up by gripers. The cost of buying “ebaysucks.com” before someone else does is close to zero. It’s just a matter of anticipation.
Of course, its hard for companies to challenge the ownership of sites like these, since a clever owner can claim First Amendment protection as long as he or she doesn’t misstep and use the domain in a way that results in consumer confusion.
We often tell clients to buy up all the “surrounding” names for their domain of choice. The dot-COM, dot-ORG, dot-NET top level domains, and any offensive variations. Sometimes they do, sometimes they don’t. Occasionally, I’ve wondered how many of the large, Fortune 500-type U.S. companies create this kind of protection for themselves.
Well, it turns out that someone has actually done a detailed study on exactly this, and it turns out that the majority of large companies haven’t bothered to register offensive variations on their domain names ahead of their critics.
You can read the study here: The Power of Internet Gripe Sites.
Oddly, almost all of the companies that have had the foresight to do this have the “sucks” domain name resolve to their main site, which doesn’t make a lot of sense. The authors suggest that if a company does buy its own “brandsucks.com” site it should consider what Loews Theaters (now AMC) does, and take the user to a “guest satisfaction survey.” I disagree; I suggest that any company that owns such a site take the user to a page that looks like this:
Meta tags consist of words and phrases that are intended to describe the contents of a website. These descriptions are embedded within the website’s computer code. Although websites do not display their meta tags to visitors, Internet search engines utilize meta tags in various ways. First, when a computer user enters particular terms into an Internet search engine, the engine may rank a webpage that contains the search terms within its meta tags higher in the list of relevant results. Second, when a particular webpage is listed as a relevant search result, the search engine may use the meta tags to provide the searcher a brief description of the web page.
Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1045 (9th Cir. 1999
The First Circuit has affirmed a finding of trademark infringement based on the defendant’s use of meta tags to attract potential customers of the plaintiff using search engines to find the plaintiff’s web site. The case is Venture Tape v. McGill tried in U.S. District Court by Judge Morris E. Lasker. The defendant’s actions were described as follows by the First Circuit:
The record contains numerous admissions that meta tags and invisible background text on [defendant’s] website incorporated [plaintiff’s] exact marks. … [Defendant] even admitted that he intentionally used [plaintiff’s] marks for the express purpose of attracting customers …
The background text used by the defendant was “white lettering on a white background screen,” sort of a “poor man’s” meta tag.
If you don’t know what meta tags are, go to any web page, and in your browser click VIEW/PAGE SOURCE (or similar terms, depending on your browser). You’ll see the HTML code for the page, and you’ll see the meta elements in the head section of the document. As best I can recall (and determine, based on a quick Westlaw search), this is the first time the First Circuit has ruled on whether the use of meta tags can give rise to trademark infringement. There are technical and legal arguments that can be made against this conclusion, but they were not discussed by the First Circuit. In fact, the First Circuit appeared to assume that the use of meta tags constituted a violation of the Lanham Act, so long as the traditional criteria for trademark infringement were satisfied.
The 11th Circuit gave the meta tag/Lanham Act issue a much more exhaustive treatment earlier this year in North American Medical v. Axiom Worldwide, but still found liability based on the defendants’ placement of meta tags. However, not all courts agree; for cases where liability was not found, see Standard Process, Inc. v. Banks, (E.D. Wis. April 2008); Site Pro-1, Inc. v. Better Metal, (E.D.N.Y. May 2007) and S & L Vitamins, Inc. v. Australian Gold, Inc., (E.D.N.Y. Sept. 2007). For an in depth treatment of this issue see the 2005 Santa Clara Law Review article by Professor Eric Goldman, Deregulating Relevancy in Internet Trademark Law.
“In case you aren’t aware of this, MANY (over 60%) of the “100% guaranteed authentic” items you see on Ebay are 100% FAKE! Replicas are sold all over the internet so they end up on Ebay. This guide is to show you some more information on the counterfeit situation and how easily these replicas are being purchased.” Warning on eBay website. [link]
Yesterday’s New York U.S. Disrict Court decision exonerating eBay for trademark infringement based on the sale of counterfeit Tiffany products on its auction site is receiving a great deal of attention in legal (and particularly trademark law) circles. The decision is quite extensive, and will be of enormous interest to lawyers (and their clients) who deal with the problem of user-caused online trademark infringement. For a thoughtful discussion of the case I recommend Professor Eric Goldman’s discussion on his Technology and Marketing Law Blog. And watch for the appeal to the Second Circuit (the most influential trademark circuit), which I predict is a lead-pipe cinch.
Of course, when it comes to eBay and Google, when one case ends another begins. In early July Rosetta Stone, the foreign language software-based learning company, sued several companies it accuses of “piggybacking”: paying Google to have their ads appear when someone uses Google to search for Rosetta Stone. Think, consumer searches Hertz car rentals, and along with Hertz sees paid ads for Thrifty, Enterprise or Dollar rentals. These companies are “piggybacking” on Hertz’s good will by associating their ads with searches of Rosetta Stone. Is this illegal? The piggybacking ssue is still working its way through the court, and is presently is pending before the Second Circuit in Rescuecom v. Google.