Internet gripe sites

Research long has shown that consumers who have a poor experience with a company, product, or service more likely will tell others about it than those who have a decent experience. Nowadays, folks who have a negative message to share can do so more rapidly and to a broader audience than ever before just by posting their complaint on the Internet. A "gripe site" is one way to air a grievance via the Internet. This article provides the rules governing gripe sites.

Typically, gripe sites consist of a domain name that includes the trademark or company name of its target (about which/whom the site is written), along with the term "sucks", e.g., ProductXsucks.com or CompanyXsucks.com. Gripe site domain names also may consist of more specific critical commentary, for example, CompanyXpollutes.com or ProductXdefect.com. U.S. courts and other tribunals have held that domain names that inform the viewer of the nature of the website are more likely to be OK than domain names that consist solely of their target's trademark, provided that other conditions also are met.

Cybersquatting

Once a suitable gripe site domain name is chosen, such Web site owners must take care to avoid registering and using the domain name in bad faith. Both U.S. law and the Uniform Domain Name Dispute Resolution Policy prohibit "cybersquatting" which essentially consists of:

a. registration of a domain name that is identical or confusingly similar to a third party's trademark;

b. in which trademark the domain name registrant has no legitimate intellectual property rights; and

c. which domain name was registered and used in bad faith.

Bad faith

Numerous activities constitute bad faith under U.S. law and the UDRP, including, without limitation:

* Registering the domain name in order to sell it for profit.

* Attempting to sell the domain name to its target (CompanyX).

* Routinely registering domain names that consist of the trademarks of others.

* Using the domain name to commit trademark infringement.

* Conducting commercial activity under the domain name.

A finding of bad faith almost always will result in the gripe site owner having to transfer the domain name back to its target.

Any attempt by the gripe site owner to sell the domain name for a profit likely will result in a finding of bad faith, as will any attempt to sell the domain name to its target. Any gripe site owner that is involved in domain name reselling (registering domain names, usually consisting of others' trademarks, and attempting to sell them for profit) likely will be found to have registered the gripe site domain name in bad faith, even if the gripe site is legitimate. Moreover, gripe site owners must avoid intentionally using their domain name to attract, for commercial gain, Internet users to their site through a likelihood of confusion with the target's mark. In fact, gripe site owners must not have any commercial activity occurring directly or indirectly on their website.

Specifically, the gripe site owner should not use the gripe site to sell anything or offer anything for sale, including the goods or services of others, nor should they sell advertising space on the gripe site. Further, gripe sites should not contain links to any commercial websites, regardless of to whom such websites belong. Any commercial use of the gripe site, including indirect commercial use, may result in a court order requiring the gripe site owner to relinquish the gripe site domain name to its target, effectively shutting down the site. Provided that the gripe site owner uses the site only for the purpose of critical commentary, they also must exercise caution about the manner in which such commentary is relayed.

Defamation

Gripe site owners must be careful not only of what they do with their gripe site, but also how they do it. Specifically, gripe site owners must take care not to defame their site's target. Written defamation is called libel and defamation that is oral is called slander. A successful defamation claim in Nevada requires the accuser to prove that the accused party made a false and defamatory statement concerning the accuser to one or more third parties, which statement damaged the accuser. Thus, the accuser has the burden of showing not only that the accused made false statements of fact, but also that those statements defamed the accuser. In Nevada, a statement is defamatory if it "would tend to lower the subject in the estimation of the community and to excite derogatory opinions against him and to hold him up to contempt."

The primary ways in which gripe site owners can avoid defaming their target is to post only documents that were created by the target and to post only opinions of the target, not factual statements. Facts are verifiable, opinions are not. Merely stating that something is an opinion, or phrasing it as such, does not necessarily render it such. If an opinion implies facts, the court likely will treat it as fact rather than an opinion. Thus, there are two essential rules to follow to avoid a defamation claim over gripe site content: First, avoid facts; and two, when in doubt, leave it out!

Gripe sites can be powerful tools to combat injustice, so long as such sites are operated in good faith and within the parameters of applicable law. Use of a domain name that reflects the site's nature and the avoidance of any commercial transactions on the site will help avoid a cybersquatting action. Limiting the content of the gripe site to materials and opinions related to the dispute that gave rise to the site will help avoid a cybersquatting action, as well as defamation claims. The best way to avoid problems from your gripe site is to consult with intellectual property and/or constitutional law counsel prior to launching.

Lara Pearson is the leader of the Law Office of Lara Pearson, Ltd., an intellectual property firm in Incline Village. Contact her at (775) 833.1600 or via e-mail at Lpearson@secur-ip.com.