In today’s world, the Internet provides a forum where aggrieved customers, former employees, and other members of the public can express their dissatisfaction with a company’s products and services. There is an abundance of gripe websites and the addition of the suffix “sucks.com” to the name of a business is fairly common.
Companies often retaliate, sending Internet defamation cease and desist notices, filing lawsuits alleging a variety of legal causes of action including violation of trademark laws, violation of copyright laws, defamation, and tortious interference with business relationships.
If the outcome of litigation was the sole measuring standard of how gripers have faired in these suits, you could say that the gripers have done very well. As long as the griper does not benefit financially or commercially from the gripe site, attempts to shut them down are rarely successful.
The Anti-Cybersquatting Consumer Protection Act (ACPA) does not apply to forms of expression that are not part of a commercial transaction. Successful cyber gripers have convinced the courts that the main purpose of their sites is legitimate criticism rather than cybersquatting or cyber-piracy. Take for example Lucas Nursery & Landscaping v. Grosse, where the U.S. Court of Appeals for the Sixth Circuit refused to give the ACPA an overbroad meaning and refused to classify the defendant as a cybersquatter in the absence of evidence of bad faith “intent to trade on the goodwill of another’s mark.”
Likewise, in Bosley Medical Institute v. Kremer, the U.S. District Court for the Southern District of California found that the defendant’s registration of a domain name containing a the plaintiff’s trademark plus a pejorative term did not generate a likelihood of confusion regarding the sponsorship of the site since the motivation to criticize was clear.
Cyber gripers-to-be must consider the enormous cost of defending a lawsuit against a company with sufficient motivation and vast financial resources. Lawyer fees alone can drive a cyber griper into financial ruin! Businesses must make the important business decision of whether to sue or ignore the pesky cyber griper.
Don’t forget what happened when Toys “R” Us sent a cease and desist letter to the operators of the website Roadkills-R-Us alleging “likelihood of confusion.” Rather than folding to Toys “R” Us demands, Roadkills-R-Us created a satirical website about the litigation. Before threatening, make sure that you are in good legal standing and that you are ready to follow through… otherwise, the cease and desist notice that was meant to stop the defamation will be a source of Internet ridicule for your business. Cease and desist letters are a very important and very misused tool for putting the perpetrators of unlawful acts on notice. In some jurisdiction a cease and desist notice is a prerequisite to the filing of an Internet defamation lawsuit and to show bad faith by the recipient. However, if not done correctly, the punishment for a bad letter is an unintended consequence of attempting to punish those engaged in Internet defamation.