Scores of disgruntled customers who criticize businesses on Internet “gripe sites” are finding themselves entangled in costly court battles with companies charging trademark infringement.
But the courts aren’t buying the trademark argument, and have consistently upheld the free speech rights of people who vent about companies on the Internet. Critics charge that companies are merely attempting to wear down defendants through costly litigation.
“Trademark law is being used improperly, in our view, to suppress perfectly legitimate, noncommercial speech, which we think is just beyond the purview of the trademark laws,” asserted attorney Paul Levy of the Public Citizen Litigation Group, which is currently handling five gripe-site lawsuits.
Trademark attorney Virginia Richard, who advises many companies on the subject of gripe-site suits, disagrees.
“It’s the obligation of the trademark owner to protect its mark and in my view these cases are filed in good faith,” said Richard, who heads Winston & Strawn’s intellectual property department in New York.
“They’re not trying to bully or otherwise,” she said.
According to a Web site called www.Webgripesites.com, there are currently more than 70 gripe sites on the Internet criticizing everything from car makers to hair-transplant providers to insurance firms. Of those, 25 have been involved in litigation in recent years, while just two have been shut down.
Currently, about a dozen gripe site lawsuits are pending across the country.
Lawyers tracking such suits allege that the trademark violation claims are bogus; they argue that companies are merely trying to bully defendants into backing down and shutting down their Web sites.
“They know that they’re not going to win, but do it hoping that they’re going to intimidate people,” said attorney David Arkush, also of the Washington-based Public Citizen Litigation Group, who is handling a gripe site lawsuit in North Carolina.
“Companies that initiate this litigation know they probably won’t win but do it in hopes of silencing their critics anyway because, obviously, it’s very expensive to defend a case like this,” Arkush said.
While Richard strongly defends a company’s right to protect its trademark, she also noted that she does not recommend that her clients-who have been hit with gripe sites-file trademark violation suits. They’re hard to win, she said, and they can create a public relations nightmare.
“The impact [of gripe sites] overall is minimal, whereas the publicity that may arise from a lawsuit could do more damage than the site itself,” Richard said. “And if you look at the precedent it’s not encouraging.”
There have been several court rulings in recent years that uphold a person’s right to criticize companies on the Internet.
Most recently, the 5th U.S. Circuit Court of Appeals ruled in favor of a man who set up a Web site to complain about how he was treated during a home purchase. TMI v. Joe Maxwell, 368 F.3d 433 (5th Cir.).
Another big win for gripe-site advocates came out of the 6th Circuit, which in March upheld a woman’s right to create a noncommercial Web site on which she criticized a landscaping company for an allegedly botched lawn job. The Web site bore the company’s name as the domain name. Lucas Nursery and Landscaping v. Grosse, 2004 WL 403213 (6th Cir.).