Strategies for Blocking Internet "Gripe" Sites and Internet Complaint
Block Gripe Sites Now - See How!
This summer, commuters arriving in San Francisco from the Bay
Bridge were confronted with placard signs reading: "Had any problems
at Starbucks Coffee? You're not alone. www.starbucked.com." The
sign's author, Mr. Dorosin, had taken his anti-Starbucks campaign to
the streets and the Web using a similar and possibly confusing domain
In 1995, Jeremy Dorosin purchased an espresso machine as a wedding
gift for a friend in Berkeley California. Apparently the espresso
machine was not in good working order and Starbucks neglected to
provide Mr. Dorosin with the free coffee that went with each machine.
Mr. Dorosin escalated his complaints to Starbucks' corporate office
and demanded a top of the line replacement espresso machine under the
threat of taking out a full-page ad in the Wall Street Journal.
Starbucks offered to send letters of apology, and send a machine of
better quality, but not the $2,500 machine demanded. Mr. Dorosin took
out his WSJ ad, and proceeded with his anti-Starbucks crusade on the
Internet, opening up his "Starbucked.com" site. Mr. Dorosin's story
has now appeared on local radio and television stations in Seattle and
San Francisco as well as the New York Times.
Sometimes, companies face a difficult battle when attempting to take
down "complaint" sites on the Internet where disgruntled customers and
employees take their grievances to the public. When the "complaint"
site is engaged in commercial activity, Federal trademark
infringement, dilution and trade libel laws may protect a company
against disparaging use of corporate names and trademarks and
confusing domain names. However, when the purpose of the
disparagement is solely customer complaint and parody, these laws will
provide far less protection.
In addition to possible legal actions, some companies are adopting
other strategies as well. Complaint Web pages that appear on third
party servers, such as Yahoo!/Geocities, are generally subject to a
Web hosting agreement that prohibits trademark infringements and
offensive materials. Upon receiving complaints of possible
infringement and libel, Web hosting companies will generally remove
such pages. Recognizing the low cost of registering anti-domain
names, many companies have registered as many variations as possible
for their Internet domain names (like chasesucks.com) in order to
reduce the opportunities for disgruntled customers and employees to
establish complaint Web sites with similar or confusing domain names.
Another strategy followed by some companies is to monitor the
"complaint" site and, when appropriate, to send coupons and e-mail to
Companies must be vigilant of their domain names, trademarks and other
intellectual property and they should develop a comprehensive strategy
to address all forms of Internet "complaint" sites.
Block Gripe Sites Now - See How!
II. INTERNET COMPLAINT SITES
Much to the chagrin and annoyance of company executives, Internet
"complaint" Web sites have become the weapon of choice for frustrated
customers, disgruntled employees, political activists and anyone with
an ax to grind to air their gripes cheaply and sometimes effectively.
Protected by the cloak of anonymity and empowered by a worldwide
audience, Net-complainers have carried old-fashioned pickets and
soapbox tirades into cyberspace. For obvious reasons, the largest
companies receive the most complaints. One newspaper reports that "[c]onservatively,
more than half of the Fortune 1000 companies have encountered some
type of Web site critical of their business,"1 from
Wal-Mart to Allstate to Toys 'R' Us to Microsoft.2
Web sites bashing a company, its products, or its employees most
often simply tell stories of bad customer service or a faulty
product. There are so many that Yahoo! has created a separate
directory for "complaint" sites3, catering to everything
from hard core consumer activism and anti-corporate backlashing to
personal revenge and rumormongering. Not surprisingly, "[f]ew of the
sites cater to hard-core consumer activists--plenty are merely the
province of Web whiners who have found an easy, often anonymous, way
to spout off from their armchairs."4
As the Internet grows ever larger, companies need to implement
policies for effectively dealing with "complaint" sites directed
against them. Regardless of the type of "complaint" site, however, a
company serious about its online image needs to consider the several
categories of "complaint" sites on the Internet and plan its response
accordingly. There are many categories of "complaint" sites on the
Consumer and Employee Complaint Web Sites: The vast majority
of complaint sites fall into the category of consumer complaint
sites. These sites typically collect stories of bad customer service
or a faulty product. The list of these sites is growing and a
sampling of these sites is listed below:
- Chasebanksucks.com: According to its creators, the site
is dedicated to "all those who hate Chase Manhattan Bank, and also
to inform others why they should not bank with Chase,"this
highly-publicized site features an animated picture of a man
repeatedly urinating on the word "Chase." A bulletin board allows
customers and ex-employees to gripe about every service Chase
provides (as well as an "insider's" prospective on Chase policies).
The site also provides links to news stories about how "Chase's
'right relationship' started with the Nazis during W.W.II" and how
"corruption is alive and well at Chase."
- AOLsucks.com: The creator of this site is upset over
apparently overzealous censorship, inconsistent service, prevalence
of spam and lack of security. The operator's biggest claim to fame,
however, is a series of e-mails sent by AOL employees which threaten
legal action at first, and then become very apologetic as AOL begins
to realize the public relations fiasco they might create.
Nevertheless, AOL has been one of the most outspoken proponents of
shutting down anti-AOL sites.5
- Dunkindonuts.org: David Felton of Hartford, Conn., was
outraged that his local Dunkin' Donuts store did not carry 1 percent
milk, his favorite coffee lightener. He was also upset that the
world's largest doughnut chain did not offer a "decent" low-fat
muffin. Felton's site is among the most prominent of Internet
consumer complaint sites, featuring "unhappy tales about coffee,
crullers and cinnamon buns."6
- Starbucked.com: The Starbucked Web site documents the
saga of onetime Starbucks customer Jeremy Dorosin and his
fight against Starbucks' corporate greed, all stemming from a
defective espresso machine Dorosin purchased. Dorosin also plugs
his book detailing his struggle against Starbucks in addition to
maintaining a "Top Ten" list of other companies who have "starbucked"
- Untied.com: A mistype of united.com (for those looking
for United Airlines) leads to untied.com, a complaint site created
by anti-fans of United Airlines. This site tries to be a
clearinghouse for passenger complaints directed at the customer
service department at United and publishes all complaint letters
(and the few responses from United) for the world to see.
- Bally Sucks: Once the target of a federal lawsuit in
which the operator was held to be justifiably exercising his free
speech rights, this site caters to those bitter customers who find
themselves unreasonably bound by Bally Health Clubs' membership
contract and policies. This case is now an often-cited example of
the clash between corporate image and First Amendment rights on the
- The Nervous Investor: In explaining how he "lost his
shirt with E*TRADE Canada," Lubomyr Prytulak crusades as one who has
been "defending investor rights since 1 Jan. 1999." This site
consists mostly of personal experiences Prytulak has had in using
E*TRADE services and his dissatisfaction with the result. With all
the nervousness of online investors and the susceptibility of stock
prices to rumors on the Internet, attorneys for E*TRADE recently
sent Prytulak a letter alleging harassment and libel and seeking
injunctive relief, damages, costs, and account closure.8
Block Gripe Sites Now - See How!
Consumer and Ex-employee E-mail: In addition to
the Web, disgruntled consumers and ex-employees may take to e-mail to
vent their frustrations and disrupt company operations.
In ways perhaps far more damaging, disgruntled customers have used
e-mail to disrupt company operations. In perhaps one of the largest
cases of phantom e-mail, during two weeks in July 1997, some six to
twenty million Internet users received what appeared to be
unsolicited, promotional e-mail from Samsung Electronics. Upset over
the apparent "spam," thousands sent back angry responses. This time,
they received a nasty cease and desist message, apparently from
Samsung's law firm, that said, in part, "Your e-mail name was provided
as being suspected of connection to various acts of Internet
terrorism. Your acts are illegal." Not surprisingly, Samsung received
an even angrier and more voluminous response (as many as 10,000
e-mails a day). Samsung estimated that the damages from the incident
reached into the millions of dollars. However, none of the offending
messages originated with Samsung or its representatives. They were,
apparently, the work of a single dissatisfied customer.9
Ex employees have also used e-mail to disrupt company operations. In
Intel Corp. v. Hamidi10, a California judge recently
granted Intel summary judgment and a permanent injunction in its
trespass suit against a former employee. Intel sued the former
employee in 1998, alleging that he illegally accessed the company's
e-mail system, sending more than 30,000 messages stating that the
company is unfair and abusive to Intel employees. The court noted
that "the evidence establishes (without dispute) that Intel has been
injured by diminished employee productivity" and in devoting resources
to blocking the e-mails.11
Political Web Sites Targeting Companies: In addition to
disgruntled consumers and employees, companies may face Web sites
sponsored by environmental or other activist groups seeking to promote
their political causes. There are many examples of these types of Web
- Homedepotsucks.com: Depicting a Home Depot employee with
a skull for a head, this site is run by the Action Resource Center
and the Rainforest Relief and Living Jungle Alliance. The groups
claim that Home Depot is the "largest retailer of old growth
rainforest wood in the U.S. As countless forests and indigenous
peoples continue to face death and annihilation, Home Depot only
responds with PR spins and broken promises." This site also fields
general customer complaints that have nothing to do with old growth
lumber; many contributors tell unverified stories of managers
killing birds trapped in the store, bitterness over getting fired
from Home Depot, and anger over Home Depot running smaller stores
out of business.12 Home Depot's director of community
affairs and environment programs strongly disagrees, noting that "[i]t's
just not true," and that she "respect[s] the right to freedom of
speech," but not when it involves false and misleading information.13
The company has tried to counter the charges through its Web
page by highlighting their strong commitment to environmental
programs and policies such as recycling, "green" products, and
consumer education on the environment.
- McSpotlight: With over sixty volunteers in several
countries, 21,000 files, and a server in the Netherlands and mirror
sites in the U.S., New Zealand and Australia, this fancy Web site
and the organization responsible for this site, McInformation
Network, were recently the subject of a lawsuit--nicknamed "McLibel"
by the group--by McDonald's in the United Kingdom. McDonald's won
$94,000 in damages for libel, after having spent $16 million on the
case.14 This site charges McDonald's with: 1) the
connection between multinational companies like McDonald's, cash
crops and starvation in the third world; 2) the responsibility of
corporations such as McDonald's for damage to the environment,
including destruction of rainforests; 3) the wasteful and harmful
effects of the mountains of packaging used by McDonald's and other
companies; 4) McDonald's promotion and sale of food with a low
fiber, high fat, saturated fat, sodium and sugar content, and the
links between a diet of this type and the major degenerative
diseases in western society, including heart disease and cancer.;
McDonald's exploitation of children by its use of advertisements and
gimmicks to sell unhealthy products; 5) the barbaric way that
animals are reared and slaughtered to supply products for
McDonald's; and finally, 6) the lousy conditions that workers in the
catering industry are forced to work under, and the low wages paid
by McDonald's, and McDonald's hostility towards trade unions.
Block Gripe Sites Now - See How!
Competitor Sponsored Sites: Some "complaint"
sites may not be run by disgruntled customers or employees, but by a
competing company or its employees. For example, in a federal suit
filed in Michigan in 1998, Amway alleged that Procter & Gamble "has
been a behind-the-scenes sponsor of a rogue Web site...that foments
hate rhetoric about Amway."15 In addition to the standard
array of negative news clippings and personal testimonials, the site
"Amway: The Untold Story"16 apparently published some
sensitive internal documents. Proctor & Gamble acknowledged it
supplied some material to the creator of the site but says the
documents were public and that it acted legally.17 The
veracity of Amway's claims has yet to be tested in court, but the case
serves as a reminder that companies must make sure that its own Web
site does not libel or infringe upon the rights of its competitors.
Personal Revenge Sites Against Employees: William A. Sheehan
III, a Seattle-area man who believed his credit had been unfairly
damaged by several rating agencies--including TransUnion, Experian,
CBI/Equifax and SCA Credit--retaliated against some of the companies'
employees and attorneys by posting family information such as names,
birthdates, social security numbers, home addresses and maps to their
homes on his Web site.18 Fearful the information might get
into the hands of a stalker, the companies asked a judge in Seattle to
close the site.19 But even though Sheehan called the
employees "scumbags" and worse, he didn't advocate hurting them, so
the judge let him keep the site. However, the court later dismissed
Sheehan's lawsuits against the credit agencies because of Sheehan's
"bad faith and abuse of judicial process" in disparaging the credit
agency attorneys on his Web site, which the court noted was "clearly
presented as an invitation for others to harass, threaten, or even
attack these people."20
Disgruntled Employee Web Sites: Many of the "complaint"
Web sites contain forums for disgruntled current and ex-employees.
The walmartsucks.com, chasebanksucks.com and
bestbye.com sites are three of the more popular among such
employees. Most employee complaints seem to revolve around poor
treatment of lower-ranking employees by management. While rooted in
some element of truth, many complaints are one-sided, exaggerated, and
sometimes outright false. Nevertheless, when an anti-company Web site
is setup by existing employees, employers must be aware that taking
action against the site could violate labor laws. If a site discusses
company policies and invites other employees to comment, then it can
be considered "concerted activity" and is protected by the National
Labor Relations Act (NLRA).21 In short, where the company
does not sponsor the Web site or host it on company servers, there is
may be little the company can do to shut down employee forums. As
discussed infra, however, companies can pursue employees and
non-employees who the company believes are revealing confidential
information and spreading false rumors.
Block Gripe Sites Now - See How!
III. BUSINESS IMPACTS FROM CUSTOMER "COMPLAINT" WEB
Consumers often search the Web for opinions and experiences with
products and services. Although it is difficult to quantify the
impacts from customer "complaint" sites, there are now a few examples
of business losses attributable to such sites.
In 1996, EPS Technologies, an $80-million computer manufacturer in
Omaha which sold PCs through its 800 number, blamed significant
revenue loss on four "complaint" sites hammering its service. The
first site was created by a customer who was frustrated by a
month-long delay in receiving a laptop. Though EPS offered him a
refund, he insisted on additional compensation for his inconvenience.
When the company refused, the customer threatened a negative Web
site. The site went up, but EPS Technologies did not realize the site
was built with metatags--special Web-search markers--that brought the
negative site up ahead of EPS Technologies' own site on search
engines. Cyber-customers who searched the Web to learn more about the
company instead read a scathing indictment of EPS Technologies.
"People called up and said they were canceling orders because of it,"
EPS Technologies president Ed Kieler said. "We have to assume some
others simply never called in the first place." All told, EPS lost
hundreds of orders, he added. In 1997, EPS Technologies went out of
business for reasons unknown.22
A large company generally has the resources to fight online
rumors by hiring a public relations firm. For example, in 1996 rumors
spread on the Web that Mrs. Fields Cookies planned to donate cookies
to the O.J. Simpson victory party. Threatened with a national
boycott, Mrs. Fields Cookies quickly hired an online firm to fight the
rumors, which eventually died down as a result.23
While the "complaint" sites or rumors may be only a nuisance or
irritant to large corporations, they can be more devastating to
smaller companies. In 1998, David Holker hired two Web site designers
to help him develop a Web page for his company, Express Success Inc.,
a multilevel marketing company that sold car products. After a
billing dispute, the designers created expresssuccesssucks.com, a site
where they "called Express Success a 'scam,' pictured Holker in prison
clothing, and posted an advertisement for one of his biggest
competitors."24 Holker claims the attack drove his revenues
down from $60,000 monthly to nearly zero, since many of his clients
came from the Internet. Claiming defamation, among other things,
Holker sued the Web site designers. His efforts to shut it down
failed, but he's still seeking money damages.
IV. LEGAL STRATEGIES FOR CUSTOMER "COMPLAINT" SITES
While some companies have tried to silence their cybercritics
using legal force, the results have been mixed. In many cases,
however, the mere threat of legal action is enough to scare a Web site
operator into submission. By the same toke, the company must keep in
mind that threats of legal action will generally be highlighted and
portrayed poorly on the complaint site.25
Web site operators argue that they have a constitutionally
protected right to preach their message. Unless the content is
libelous it is protected by the First Amendment. In addition,
trademark infringement and dilution claims may be ineffective if the
complaint site is clearly unofficial, non-commercial, and unlikely to
confuse consumers.26 In addition, any legal action that a
company threatens may draws more attention to the complaint site. In
short, legal action may be more appropriate for extreme cases, i.e., a
clear case of libel or trademark infringement or dilution.
Block Gripe Sites Now - See How!
- Common Law Defamation and the First Amendment Defense
When challenged, the vast majority of "complaint" Web
site operators claim their conduct is protected under the First
Amendment, which guarantees freedom of speech. Accordingly, many
complaint Web sites on the Internet contain a disclaimer similar to
the one on www.bestbye.com (link to https://www.bestbye.com/legal.html),
an anti-Best Buy site:
"This site is classified as a non-commercial,
non-profit consumer advocacy site, which is permissible via the
First Amendment to the US Constitution; specifically, the freedom
of speech/expression. It provides a forum for the general
populous to voice their opinions and experiences regarding the
subject matter at hand. The operator assumes no liability for the
actions or statements of the posting party(s)."
Because the standards for a state defamation claim are
very high, many "complaint" Web sites may not constitute libel. A
defamation claim generally "requires the plaintiff to demonstrate the
existence of a defamatory statement about the plaintiff that is
'published' by the defendant with malice."27 Nevertheless,
operating under the flag of "consumer advocacy" and "public opinion,"
such sites are very difficult to attack using libel laws for three
First, as a general rule, companies cannot sue for libel –called
"trade libel" or "product disparagement" – unless they can show actual
damages, such as monetary losses resulting from the false statement.
In the many cases, however, companies are seeking to shut down
"complaint" sites before any damage is done or damages are
speculative. While perhaps a prudent strategy, trade libel may not
Second, those individuals29 within a company who are
singled out for criticism are usually considered "pervasive public
figures" or "limited-purpose public figures," meaning that by merely
"being" a notable figure within a company (i.e. Bill Gates) or at
least engaging in the transaction giving rise to the criticism (i.e.,
setting a corporate policy or selling a certain product), such
individuals have invited public scrutiny and exposure.30
As a result, the standard for libel rises to the level of "actual
malice," meaning that the false statement must have been made "with
knowledge that it was false or with reckless disregard of whether it
was false or not."31 This "reckless disregard" standard
usually makes it extremely difficult to prove actual malice32
since the Supreme Court has held that a statement need only be
"substantially true,"33 meaning that the overall nature of
the statement is true, but not necessarily entirely true.34
Although the standard for libel drops to a mere negligence if the
plaintiff is a private figure, it is difficult to imagine a
"complaint" site singling out an individual without also mentioning
some act within the corporation to which the individual is linked.
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On many Web site providers like Yahoo!/Geocities or AOL,35
the Web site creator can hide behind a cloak of anonymity. This
to assure users that their personal information will not be divulged
to Internet marketers. Because of the anonymity, however, companies
have considered pursuing a libel action against the parties
responsible for hosting the site.
After the enactment of the Communications Decency Act (CDA) of 1996,
however, ISPs and discussion group hosts no longer have an incentive
to monitor the content on its servers for defamatory material.
Although much of the CDA was struck down as unconstitutional, 47 U.S.C.
§230(1) remained. It provides that "[n]o provider or user of an
interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content
provider."36 Congress noted as its express purpose in
enacting §230 the intent to allow ISPs to exercise editorial
discretion without fear of publisher liability.37
The immunity provision faced its first major test in Zeran v.
America Online.38 In Zeran, an anonymous subscriber
repeatedly posted allegedly defamatory statements about Zeran to an
AOL bulletin board. In attempting to hold AOL liable, Zeran argued
that §230 did not bar his action because once he notified the service
of the first message, it had knowledge of the defamatory statement and
had a duty to remove the posting promptly and notify its members of
the falsity of the statement. Zeran argued that §230 only immunized
"publishers;" he claimed that AOL was a "distributor" for purposes of
defamation law. The court, however, held that §230 did indeed
immunize AOL against liability for defamatory statements of content
Despite §230, however, as a matter of policy most Web hosts and ISPs
will block any defamatory or abusive material of which they are made
aware.39 Furthermore, Web hosts and ISPs will often
divulge an anonymous user's identity to companies who threaten legal
action. For example, Raytheon, in the libel case discussed infra,
"had a relatively easy time"40 obtaining orders that Yahoo!
emphasizes that Yahoo! is "committed to safeguarding your privacy
online."41 Specifically, Yahoo! has included a disclaimer
for its Business & Finance discussion boards, noting that "under
special circumstances, such as to comply with subpoenas and other
legal obligations, Yahoo! may provide personally identifiable
information which may include IP addresses."42 Ultimately,
Raytheon dropped the case when four employees implicated in the
discussion board resigned,43 including a Raytheon vice
president, Mark Neuhausen, who allegedly posted confidential
information under the alias "RSCDeepThroat."44
- Trademark infringement, trademark dilution, copyright
infringement and unfair competition under Federal law.
Trademark rights are one of the biggest concerns of
any company trying to protect its name and trademarks on the Internet
from cybercomplainers. Most cybercomplainers use the company name in
their domain name or plaster their sites with a company's name and/or
logo--often doctoring the logo to spell crude names. In fact, "[m]ore
than 80 percent of Fortune 1000 companies are victims of some type of
trademark misuse on the Internet" according to Cyveillance, a company
that monitors online abuse for corporate clients.45
However, in pursuing a "complaint" site, a standard trademark
infringement claim requires confusion on the part of the consumer,
implying that infringement claims only work where the alleged
infringer is engaged in commercial conduct.
Block Gripe Sites Now - See How!
Block Gripe Sites Now - See How!
Many times, "complaint" sites prominently feature an image of a
company's trademark logo, usually with the word "sucks" or other
derogatory words. The presence of the derogatory comment may
clear any potential customer confusion, so a traditional trademark
infringement argument may fail. However, the Federal
Anti-Dilution Act of 1996 (15 U.S.C. §1125) prohibits use of a
name which harms the distinctiveness of "famous" marks, without
regard to whether any likelihood of confusion exists, and
regardless of the absence of competition. An exemption in the
Act, however, §1125(c)(4) permits:
(A) Fair use of a famous mark by another person in
commercial advertising or promotion to identify the
goods or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and commentary.46
Most "complaint" sites claim to be out of reach by trademark
dilution laws because their activities supposedly constitute
non-commercial consumer activism. Depending on the tone and
content of the site, however, the "non-commercial" activity of a
"complaint" site is quite often debatable. Two cases illustrate
both ends of the spectrum, Bally Total Fitness Holding Corp. v.
Faber47 and Jews for Jesus v. Brodsky.48
In Bally a California court held that defendant Faber, who
had created a Web site named Bally Sucks, which he created
"in a simmering rage after a Bally club in California didn't
upgrade his membership as promised,"49 violated neither
federal trademark infringement nor trademark dilution statutes
because the site was merely a parody designed to voice consumer
complaints and not commercially competitive with Bally in any
way. The site was so clearly anti-Bally that it could not be
construed as the company's handiwork. In Bally, the court
noted that Faber "does not use Bally in his domain name" and that
"even if Faber did use the mark as part of a larger domain name,
such as 'ballysucks.com', this would not necessarily be a
violation as a matter of law" because "no reasonably prudent
Internet user would believe that 'Ballysucks.com' is the official
Bally site or is sponsored by Bally. Finally, the court also
cited congressional intent to exempt parody and other
non-commercial imitation from the Act.50
A company considering legal action against a "complaint"
site should consider the way in which it is depicted on the site.
If the site clearly would not be confused as the company's own
site (i.e., prominently visible slogans criticizing the company,
obscene pictures) then a court following Bally may permit such
criticism on the Web, provided that the "complaint" site is not
engaged in commercial activity, but is merely criticism,
commentary or parody. However, if the "complaint" site could lead
a consumer to confuse it with the company's real site (i.e.,
similar domain names or similarities in overall graphical
presentation of the site), then a court might be willing to
intervene, as in the Jews for Jesus case below.
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In Jews for Jesus, defendant Brodsky created a Web site
called jewsforjesus.org which contained statements critical of an
organization called Jews for Jesus. At one point, Brodsky was
reported as starting that the "intent behind my bogus 'Jews for
Jesus' site (www.jewsforjesus.org) is to intercept potential
converts before they have a chance to see the obscene garbage on
the real site."51 Users who reached Brodsky's site
would be "invited to 'click here to learn more about how the Jews
for Jesus cult is founded upon deceit and distortion of fact.'"52
Because of Brodsky's intent to divert users looking for the real
Jews for Jesus site to his own by creating a Web site with a
confusingly similar domain name, the court found that "[t]hese
statements demonstrate the actions by the Defendant were wilful
[sic] and undertaken in bad faith, with full knowledge of and the
intent to cause confusion and to infringe on the rights of the
Plaintiff Organization."53 The court held that the
plaintiff had demonstrated a likelihood of success on its claim of
federal and common law service mark infringement.54
The court also found that Brodsky's conduct was "commercial"
for the purposes of substantiating plaintiff's trademark dilution
claim for two reasons. First, although Brodsky's site did not
solicit funds or sell products, it contained a hyperlink to the
Outreach Judaism Organization Internet site, which did sell
merchandise, making the jewsforjesus.org site a "conduit" to
commercial activity, despite a disclaimer which disavowed any
affiliation with Outreach Judaism.55 Second, the
court considered Brodsky's conduct "commercial" because "it is
designed to harm the Plaintiff Organization commercially by
disparaging it and preventing the Plaintiff Organization from
exploiting the Mark and the Name of the Plaintiff Organization.
In addition, the Defendant Internet site has and will continue to
inhibit the efforts of Internet users to locate the Plaintiff
Organization Internet site."56
The court's finding of commercial use in Jews for Jesus is
important because occasionally, a "complaint" site will plug books57
sell advertising space,58 solicit donations,59
or provide links to other commercial sites. The Jews for Jesus
case seems to suggest that any commercial benefit derived from a
"hate" site, or any commercial harm done to a company, would
classify the site as commercial, thereby permitting a trademark
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For example, in Planned Parenthood, the court held that
defendant's use of a similar domain name was commercial conduct
(1) defendant is engaged in the promotion of a book, (2) defendant
is, in essence, a non-profit political activist who solicits funds
for his activities, and (3) defendant's actions are designed to,
and do, harm plaintiff commercially.60
The court concluded that "[t]he conduct of the Defendant
also constitutes a commercial use of the mark and the Name of the
Plaintiff Organization because it is designed to harm the
Plaintiff Organization commercially be disparaging it and
preventing the Plaintiff Organization from exploiting the Mark and
the Name of the Plaintiff Organization."61
Any copyright claim will be subject to the defense of "fair
use" under 17 U.S.C. section 107. Federal law accepts the "fair
use" of copyrighted material without prior consent of the
copyright owner for "criticism, comment, news reporting, teaching,
scholarship, or research."62 Most "complaint" sites can
probably be classified as some form of criticism, comment or
parody, all of which would most likely fall under the fair use
Lastly, a company considering legal action against a
cybercomplainer must consider the jurisdiction in which they bring
suit. For example, in March of 1998, U-Haul brought suit in
Arizona against John Osborne of Georgia for trademark infringement
and libel. Osborne ran the "U-Hell" Web site which published
visitors' U-Haul "horror" stories. Arizona is U-Haul's home base,
but the defendant filed a motion to dismiss the case, arguing the
defendant and witnesses are in Georgia, not Arizona. The case was
summarily dismissed,63 with U-Haul vowing to refile in
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V. NON-LITIGATION STRATEGIES FOR ADDRESSING
In order to stem the proliferation of confusing "complaint"
driven domain names, many large companies (or their
marketing/advertising firms) are registering or buying domain
names critical of the company mark.64 Many companies
will register the following variations on complaint sites: [name]sucks.com,
[name]stinks.com, [name]blows.com, ihate[name].com,
screw[name].com, and boycott[name].com.65
In addition, a whole market has popped up for companies that
monitor the Internet for abuses of a company's trademark or
copyrighted material.66 A large list of such companies
is available on Yahoo!.
The price for such monitoring, however, is not cheap.
Approximately 600 companies pay about $13,000 to one company that
prowls Web sites and helps with damage control when criticism hits
the Internet.67 Less expensive techniques involve
software that monitors who links to a company's Web site.68
Finally some companies regularly monitor complaint Web site
and take a proactive approach to such complaint sites and customer
For example, the most captive audience at dunkindonuts.org are the
executives of Dunkin' Donuts, who fastidiously monitor the site
and "occasionally send coupons and mollifying e-mail to
disgruntled consumers."69 Nike Inc. has taken to a
peaceful counteroffensive. In response to several sites urging
consumers to boycott Nike for underpaying Third World workers, the
sports clothing manufacturer has created a site separate from the
company's main Web page. It features photos of a humble but
clean-looking shoe manufacturing plant in China and describes
benefits offered to overseas workers."70 Other
companies, including many computer vendors, provide at least an
e-mail link (or even a Web-based forum monitored by a customer
service representative who answers questions in real-time) so that
frustrated customers will hopefully blow their steam directly at
the company instead of complaining to the whole world.71
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When a company is confronted with a customer or employee
"complaint site," there are a number of legal strategies it may
follow. Whether the company pursues legal action or sets up an
alternative Web site, the company will need to follow a carefully
thought out strategy in order to minimize any disruption to the
business or any harm to the company trade name or trade marks.
1 Robert Trigaux, Gripe.com, St. Petersburg (Florida)
Times, January 31, 1999 at 1H.
2 See Mike France and Joann Muller, A Site for Soreheads,
Business Week Online, Apr. 12, 1999 at https://www.businessweek.com/1999/99_15/b3624104.htm.
4 David Segal and Caroline E. Mayer, Site for Sore
Consumers: Complaints About Companies Multiply on the Web,
Washington. Post, Mar. 28, 1999 at A1.
5 Janelle Brown, Can AOL Silence its Critics?,
Salon.com, July 1, 1999 at https://www.salon.com/tech/log/1999/07/01/inside_aol.
6 Segal and Mayer, supra note 6.
7 See Victoria Colliver, Anti-corporate Crusader; Pinole
Resident Has Made Starbucks-Bashing His Life's Work, San
Francisco Examiner, June 11, 1999, at D1.
9 Patrick McKenna, Samsung Stung For $Millions By Internet
Fraud, Newsbytes, August 11, 1997; See also, Martyn Williams,
Samsung Issues Statement Regarding Spam, Newsbytes, August
15, 1997; Minda Zetlin, Disinformation: What Do You Do When You
Get Dissed, Management Review, July 17, 1998, at 33.
10 Cal. Super. Ct., No. 98AS05067, Apr. 27, 1999.
11 Simon J. Nadel, Anti-Company Web Sites Often Legal, More
Than a Minor Nuisance to Employers, 4 Electronic Commerce and
Law (BNA) No. 26, at 579 (June 30, 1999).
12 See Trigaux, supra note 3.
13 Segal and Mayer, supra note 6.
14 Zetlin, supra note 19, at 87.
15 France and Muller, supra note 4; Colliver, supra,
16 The Web site is apparently now offline, so no URL is
17 France and Muller, supra note 4.
18 The Web site was at https://www.billsheehan.com but no longer
seems to be active. With respect to the company attorneys, Sheehan
announced on his Web site that "both these guys are very
unrpfrofessional. They take things personal [sic] and tend to
anger easily. Could somebody PLEASE medicate these guys?" 1998
U.S. Dist. Lexis 16862 at *3 (W.D. Wash. 1998).
19 France and Muller, supra note 4.
20 1998 U.S. Dist Lexis 16862 at *5.
21 Nadel, supra note 21.
22 Zetlin, supra note 18; Shane McLaughlin, Barbed Wires,
INC., Nov. 1998 at 24.
23 See Jerome and Taylor, Liar, Liar: Unscrupulous Web Pages,
PC/Computing, Dec. 1, 1998 at 89.
24 Now, however, the site merely contains a few quotes about how
Holker's case has no merit, along with a link to a page featuring
statistics on how often the expresssuccesssucks.com Web site is
25 Companies need to consider the ramifications when they
threaten legal action against "complaint" site operators. See
Phillip M. Perry, Don't Bad-Mouth Your Competition,
Chemtech, January, 1997 at https://pubs.acs.org/hotartcl/chemtech/97/jan/bad.html.
https://www.aolsucks.org/webcens/chitow.html. As an example of such
attempts at public relations gone sour, the Webmaster of America
Online e-mailed the publisher of the AOL-Sucks Web page
threatening legal action for the "offensive and disturbing"
comments. When the "complaint" site creator began to demand
justification for the legal action, a vice-president at AOL
quickly apologized and retracted all threats.
26 See Segal and Mayer, supra note 6.
27 George B. Delta and Jeffrey H. Matsuura, Law of the Internet
§7.02 (1998) [hereinafter Law of the Internet]. See also,
Restatement (Second) of Torts §558 (1997) which defines the
elements of defamation as: (a) a false and defamatory statement
concerning another; (b) an unprivileged publication to a third
prty; (c) fault amounting to at least negligence on the part of
the publisher; and (d) either actionability of the statement
irrespective of special harm or the existence of special harm
caused by the publication.
28 See, Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485 (1984) (holding that in Consumer Reports'
criticism of Bose products in its product evaluation, Bose is a
public figure and therefore must prove by clear and convincing
evidence that Consumer Reports published its comments with actual
knowledge of falsity or reckless disregard of the truth in order
to bring a libel action).
29 Although a large group of people cannot be defamed (i.e.,
"all employees of X Corp. are liars"), a smaller group--of not
more than twenty-five--has been held to have standing to bring a
defamation case where a reasonable reader can understand the
comment as applying to the plaintiff. See Law of the Internet at
30 See Law of the Internet §7.02[C] (discussing, generally,
the definition of "public figure" and "limited-purpose public
31 Law of the Internet §7.02[C], citing New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964).
32 See Law of the Internet §7.02[C].
33 Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
34 See Law of the Internet §7.02[B].
35 For example, Yahoo!/Geocities and AOL host a
wide-range of disccussion groups. Furthermore, sites like
grumbling.com and gripenet.com provide Web-based
bulletin boards for a variety of consumer complaints and workplace
grievances, but the operators of these sites post no material
36 47 U.S.C.A. §230 (West, 1996).
37 H. R. Rep. No. 104-458, at 1130 (1996).
38 129 F.3d 327 (4th Cir. 1997).
39 For example, Yahoo!/Geocities, like most free-web hosts,
prohibits the following, among other things, in its Terms of
Service (TOS) and reserves the right to terminate its service "if
Yahoo believes that you have violated or acted inconsistently with
the letter or spirit of the TOS: (5)(a) upload, post or otherwise
transmit any Content that is unlawful, harmful, threatening,
abusive, harassing, tortious, defamatory, vulgar, obscene,
libelous, invasive of another's privacy, hateful, or racially,
ethnically or otherwise objectionable; (5)(f) upload, post or
otherwise transmit any Content that infringes any patent,
trademark, trade secret, copyright or other proprietary rights of
any party." In addition, Yahoo!/Geocities provides a Content
Violation Reporting Form at https://geocities.yahoo.com/main/contact/alert_form.html.
40 Raytheon Co. Won't Sue 21 Who Put Secrets on Internet,
Boston Herald, May 21, 1999 at 14.
42 About the Business & Finance Message Boards https://messages.yahoo.com/reminder.html.
43 Short Take: Raytheon Drops Suit Against Yahoo Users,
CNET News.Com, May 21, 1999 at https://www.news.com/News/Item/Textonly/0,25,36919,00.html.
44 Todd Wallack, Message Nets VP an Exit, Boston Herald,
Mar. 31, 1999 at 35.
45 Trigaux, supra note 3.
46 15 U.S.C.A. §1125(c)(4)(A)-(C) (West, 1996).
47 29 F. Supp. 2d 1161 (D. C. Cal. 1998). See also, Planned
parenthood Federation of America, Inc. v. Bucci, 1997 U.S.
Dist LEXIS 3338 (S.D. N.Y. 1997) (holding that defendant's use of
the domain name www.plannedparenthood.com was unfairly
competing with plaintiff's Web site at www.ppfa.org).
48 993 F. Supp. 282 (D. N.J. 1998).
49 Segal and Mayer, supra note 6.
50 Bally, 29 F. Supp. 2d at 1166-67.
51 Jews for Jesus, 993 F. Supp. at 291.
52 Id. at 291 n.15.
53 993 F. Supp. 304. By extension, it may also be possible to
apply Jews for Jesus to situations where the graphic
elements of a "complaint" site are designed to look similar to the
company's real Web site and perhaps even to "complaint" sites
which are likely to fall under Bally but which are loaded
with metatags to encourage Internet search engines to place the
"complaint" site above the company's real site. The metatag issue
with EPS Technologies, discussed supra, would be a good
case to test this theory.
54 Id. at 305.
55 Id. at 308.
57 See, Starbucked.com https://www.starbucked.com,
where Jeremy Dorosin criticizes Starbucks Coffee and also sells
his book, Balance at Middlefork, an autobiographical
account of Dorosin's view of "philosophical compatibility between
Eastern and Western values," and leads up to his highly-publicized
Starbucks incident. Not surprisingly, one of Dorosin's demands to
Starbucks was to make his book available for sale in the popular
58 Both starbucked.com and chasebanksucks.com
provide links for potential advertisers to link advertisement
banners on their sites. Furthermore, bestbye.com already
has advertisements in place linking to, among other things, a
company called i-Level.com.
59 The untied.com site (anti-United Airlines) seeks
"token" contributions of $5 (or more) at
60 Planned Parenthood, 1997 U.S. Dist. at *16.
61 Jews for Jesus, 993 F. Supp. at 308.
62 17 U.S.C.A. §107 (West, 1996).
63 See Andrew Marlatt, Companies Take Complaint Sites
to Court, Internet World, Nov. 16, 1998; David Segal &
Caroline E. Mayer, Sites for Sore Consumers: Complaints About
Companies Multiply on the Web, Washington Post, Mar. 28, 1999
64 See Andrew Marlatt, Who's Owner of Chasesucks.com And
Chasestinks? Three Guesses, Internet World, June 15, 1998, at
65 Companies registering anti-domain names include, Chase
Manhattan Bank, Charles Schwab & Co., GE, Hyatt Resorts, and CIT
66 See, e.g., cyveillance.com, ewatch.com,
ir-watch.com, investorfacts.com, cycheck.com, cyberalert.com,
webclipping.com, utilittech.com, and wavephore.com.
67 Segal and Mayer, supra note 6.
68 For $20 a month, LinkAlarm, https://www.linkalarm.com,
provides the services of software robot that monitors who has
linked to a given site.
70 France and Muller, supra note 4.
71 Dell WebForum is a Web-based bulletin board for Dell
customers to ask questions and blow steam about various problems
with Dell Computers. See
https://support.dell.com/support/delltalk.htm. Dunkin' Donuts
provides product and nutritional information, as well as an e-mail
link for comments and complaints. See
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