Do ‘gripe sites’ violate federal trademark laws?

Friday, April 29, 2005

The answer depends on several factors, including whether the gripe site is
engaged in commercial use of the target’s trademarked business name, or whether
the gripe site owner has a bad-faith intent to profit from his or her site.

Businesses targeted by gripe sits have sued under both the Federal Trademark
Dilution Act of 1996 and the Anti-Cybersquatting Law of 1998. If the gripe site
is consumer commentary of a noncommercial nature, it is less likely to be
violation of these federal laws, particularly the Federal Trademark Dilution

Many commentators believe that gripe sites that do not engage in commerce are protected under the First Amendment. Some recent court decisions have upheld
this viewpoint.

For example, in Taubman Co. v. Webfeats, the 6th U.S. Circuit Court of Appeals found that a gripe site was “purely an exhibition of Free Speech, and the Lanham Act (the major federal trademark law) is not invoked.” The appeals court
explained: “We find that the domain name is a type of public expression, not different in scope than a billboard or a pulpit, and [the gripe site owner] has
a First Amendment right to express his opinion about Taubman, and as long as his
speech is not commercially misleading, the Lanham Act cannot be summoned to
prevent it.”