Hi all,
I'm wondering if it's illegal to register domains with "sucks" in it...like hpsucks.com? The content is going to obviously be related to the domain name. A friend of mine wants me to by a domain and build a site for him...just wondering if the actual company will come after me and try to sue...
Thanks
The first issue is whether or not your website will really be to criticize the company or whether the "sucks" is just a pretext. I have seen domainers who think they are cute, registering a TM + Sucks and saying "but it is just free speech." For example, I once represented Golden Palace against a fool who registered goldenpalacesucks.com and forwarded the domain to her eBay store where she sold cowboy paraphernalia. That was not "free speech." Of course, upon getting a demand letter from us, she forwarded the domain to "gamblers anonymous," but by then it was too late -- the pretextual nature of the use was already established.
Of course, there are less blatant ways to engage in pretextual use. For example, you could register TM + Sucks and then put up a BS page, throw some PPC links on it, and try and argue that it is a legitimate criticism site. But, if the primary goal is traffic, not criticism, most triers of fact can see through that -- even when it is well masked.
So, lets presume that you are going to launch a legitimate criticism site. A legitimate criticism site will usually be protected in US courts. Fair use of a trademark includes using it to criticize it. That doesn't mean that they won't be able to find an unethical bottom feeder to sue you, but you would at least feel comfortable that after you blow a ton of money defending yourself, you will get a piece of paper that says you were right. You could, in very egregious circumstances, collect attorneys fees from the plaintiff -- but I would never presume that this will be the outcome.
Lets talk UDRP now:
When it comes to "Sucks" domains (and other criticism domains) there is a split of authority in the WIPO decisions. See âWIPO Overview of WIPO Panel Views on Selected UDRP Questions,â at Paragraph 2.4.
View 1 states: âThe right to criticize does not extend to registering a domain name that is identical or confusingly similar to the ownerâs registered trademark or conveys an association with the mark.â
View 2 states: âIrrespective of whether the domain name as such connotes criticism, the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if the use is fair and non-commercial.â
View 2 is the prevailing view of American panelists and panels that apply American law to UDRP proceedings. View 1 seems to be more popular with international panelists and panels that apply European law.
Accordingly, you may still get tapped with a UDRP complaint, and if you get tapped with one, you may wish for an American panelist.
---------- Post added at 08:05 PM ---------- Previous post was at 08:04 PM ----------
"This is the McDonalds at 5th Ave and Main St where the food sucks" could be considered libel.
Wrong.