The Strategist ® Volume 15, Number 5 • February 2009 Gripe Sites: Sue or Stew By William G. Pecau

ripe sites are Web sites whose site and toll-free service numbers. Gripe credits itself with costing Shell billions purpose is to complain, criticize, sites also, theoretically, add to the public of dollars. It claims to have disclosed Gand revile businesses or other good as forums for discussion and creating environmental violations by a joint venture institutions. These sites, also know as better informed customers. in Russia’s Sakhalin Islands that allowed “hate sites” and “suck sites,” are generally However, gripe sites serve as an attraction to Vladimir Putin’s government significant established by dissatisfied customers what otherwise would be isolated disaffected concessions from the Shell joint venture. or unhappy ex-employees. And, they voices and consolidate them into a focused Accordingly, the aversion of businesses are proliferating. They have become so area of unhappiness and criticism. The overall and others to gripe sites has very powerful, common there even are sites for gripe sites effect can be an echo chamber that amplifies practical, and emotional bases. The like WebGripeSites.com and Cybergriping. and encourages disaffection. This can create immediate reaction of most businesses com. Forbes has even published lists of the a very distorted view of the company and that have been the target of a gripe site top Corporate Hate Web Sites judged on its products or services by someone who naturally is to seek legal means to have the criteria such as hostility level, number of comes upon the site. For example, one site taken down. But, shutting down a gripe posts, ease of use, and entertainment value. review of these sites dismissed most as “one site generally is not easy, often cannot be Charles Wolrich, “Top Corporate Hate Web done, and often is counterproductive. Sites,” Forbes.com, March 8, 2005. Of course, gripe sites hold little If a cease and desist letter is sent Le g a l Hu r d l e s entertainment value for those that are the A gripe site frequently uses its target’s subject of their venom. Everyone, almost out, it should be written with the or a variation in its domain name everyone, likes to be liked. Businesses as the name of the site and actively seeks to depend on it. Their advertising, customer expectation that it will be posted. harm the goodwill of its target. Accordingly, relations, employee training, product the target/trademark owner typically bases development, and sales departments are, its objection on and almost always, fixated on creating satisfied man’s personal vendetta against a company,” related federal and state law claims designed customers and goodwill. Goodwill is the but concluded that some “paint an accurate to protect trade identity and reputation, cornerstone of repeat business and without reflection” of a company stating: “I know now such as dilution, unfair competition, anti- repeat business, and attendant goodwill, that it would be quite foolish to ever shop at cybersquatting, deceptive trade practices, there is, for most, no business. Best Buy.” Scott Kessman, Gripe Sites When defamation, and the like. However, there There might be some tangential value to Something Sucks. Post Your Rant on These are significant difficulties with these claims. a gripe site. They do tell a business what Sites, Associated Content, Sept. 20, 2006, For the trademark infringement, unfair some customers think, even though their www.associatedcontent.com/article/60685/ competition, and other claims that require opinions are not necessarily those that the gripe_sites_when_something_sucks_post. a showing of likely confusion, there is the business wants to hear and certainly not html?cat=7. To draw any conclusion from a obvious problem that in most cases people those that it would want other customers site dedicated to criticism seems foolish, but are not likely to believe that the trademark or potential customers to hear. They could the reviewer’s conclusion reflects the power owner has sponsored or approved a serve as a warning system to companies and effect of bad word of mouth even upon site that is devoted to disparaging the that their products or services are not being the supposedly dispassionate. trademark owner, its brand, and its products well-received and that they are suffering Gripe sites can be more than forums for or services — particularly when the site from bad word of mouth. But, there are, criticism. Because some are run by or receive contains disparaging qualifiers such as or should be, many other and better ways contributions from former employees or “hate,” “bad,” or “sucks.” In other words, to obtain this information. Some alternative anonymous current dissatisfied employees, there is no confusion. Also, the gripe site’s routes are through a company’s own Web some gripe sites have access to and post non- use of the target’s brand is almost always public information about a company or its nominative and a . The gripe site William G. Pecau is a partner in the employees. Some of this information is false, wants its readers to know its targets; it does Washington, DC, office of Steptoe & some of it might be embarrassing, and some not desire any confusion or mistake as to Johnson LLP, where he is a member of of it might be very harmful to a company. whom it is disparaging. This clarity of victim the Intellectual Property group. He can be One gripe site www.royaldutch shellplc. and purpose also makes it very difficult for reach at [email protected]. com, run by a former employee of Shell, any dilution claim to succeed — at least LJN’s The Intellectual Property Strategist February 2009 a claim of dilution of the distinctiveness the attempt to evoke a claim against gripe expectation that it will be posted. The tone of the mark. sites is fraught with possible difficulties. Sites of the letter should be carefully considered A dilution by tarnishment claim, in like WebGripeSites.com and Cybergriping. in light of its likely larger audience. It should addition to its inherently problematic nature, com contain advice to the operators of gripe balance the need of the letter’s primary runs into a number of problems. One issue, sites on defenses to various kinds of actions purpose-to-object to all or part of the site’s which is also applicable to other trademark that might be brought. Gripe sites also have activities on the basis of appropriate legal identity claims, is whether the use of the regularly received help and representation theories and to indicate a firm resolve to target’s mark is use in commerce. If there is from public interest groups, such as Public obtain redress if the identified activities no commercial component to the site, and Citizen Litigation Group — sometimes even continue with the need to honor a customer’s there usually is not, then there might not be bringing actions for declaratory judgment. rightful expectation to be treated fairly. Also, it the commercial use necessary to bring an Riley v. Dozier, Civ. No. 3:08-CV-0642 (E.D. should be written in a manner that minimizes action under the Lanham Act or to bring a Va. filed Oct. 2, 2008). The meager success the risk of creating a justiciable controversy UDRP proceeding. A dilution by tarnishment of lawsuits brought against gripe sites and — unless the target desires a lawsuit in a claim also will face significant hurdles with the free and easily accessible information forum of the site owner’s choosing. fair use and First Amendment defenses. available to gripe site owners make it less If the gripe site’s domain name uses the The First Amendment additionally will likely that the operator of a gripe site will trademark of the target, an administrative block most claims for defamation, product feel intimidated by a threatening protest proceeding under the Uniform Dispute disparagement, and similar state law claims. letter or will be persuaded to cease efforts to Resolution is a possible course of action. A Further, the content on these Web publicize his or her perceived hurt and the UDRP proceeding obviously is a more cost sites is usually provided by anonymous complaints of others against the site’s target. effective solution than a lawsuit. Its resolution individuals — customers, and current and Accordingly, a protest letter to a gripe site is much faster and leaves the alternative of a former employees. The gripe site itself is could result in an unwelcome lawsuit that court proceeding if unsuccessful. immunized from claims perhaps stemming might be expensive and unsuccessful. There are also alternatives to legal from information from those third parties Most often, the site posts the target action. Some companies prophylactically under the Communications Decency Act company’s cease and desist letter and the purchase various combinations of their under most circumstances. Universal site’s response as exhibits A and B of the names or principal marks along with Communication Systems, Inc. v. Lycos, Inc., target’s overbearing manner and fear of pejoratives like “sucks” that are generally 478 F.3d 413 (1st Cir. 2007); Global Royalties, the truth, the site operator’s victimization used with gripe sites. This may eliminate Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d by the target, and the nobility of the site the most obvious names for gripe sites. 929 (D.Ariz. 2008). Action might be taken operator’s efforts to expose the perceived But it does not remove the problem as a against the individuals if their postings violate deficiencies of the target. In addition, the determined griper can easily come up with defamation, trade secrets, or other laws and protest letter often aids the site operator’s a combination or term not obtained by the if their identities can be ascertained. attempts to further publicize with the press target corporation to the same effect. There are certain circumstances under its site and its dissatisfaction with the target From time to time, targets just buy which the gripe site itself will not be by providing a David and Goliath story. themselves out of the problem by purchasing immunized under the Communications A cease and desist letter might have the domain from the gripe site owner. The Decency Act. For example, action may be the further unintended consequence of purchase agreement usually has a prohibition permitted to proceed against the gripe site encouraging the operator to continue the against creating other sites having the target if it can be proven that the site solicited operation of its gripe site. The folks who run or its brands, products, or services as a subject the improper posts. Fair Housing Council these sites, in this author’s opinion, tend to be of the site and a confidentiality provision. of San Fernando Valley v. Roommates.com, self-righteous narcissists with time on their However, a payment could encourage other 521, F.3d 1157 (9th Cir. 2008). In Roommates. hands. A cease and desist letter might play gripe sites if others learn or conclude that com, the Ninth Circuit held that the gripe right into the operator’s desire for attention there was a pay-off. site was not entitled to immunity where the and perception that the site’s activities are Finally, the target might seek to engage site induced illegal posts by third parties causing the target pain — which, after all, is the operator of the gripe site to find out just through its Web site registration process a principal purpose of the site. what his/her problem is and see if it can be that required subscribers to complete a The best course to deal with a gripe site rectified. This would be the cleanest, easiest, questionnaire made up of questions and often is to do nothing at all. The site itself and cheapest solution. It might not work, answers created by the site. actually might have a little impact on a but it has little downside risk and might, if The legal hurdles are daunting. In recent company’s business and the ferocity of its not immediately successful, attenuate the years, virtually all attempts to close non- venom might obscure the reality that it is only ferocity of the attacks and might in the long commercial gripe sites that have gone to a one of millions of sites that has little traffic run hasten the end of the site, by causing its decision have been unsuccessful. And, there and that is visited only by the disaffected, operator’s interest to wane. have been scores of such cases. For example, whose business is ultimately lost anyway. Bally Total Fitness was unable to close the Also, if the target pays no overt attention gripe site www.compupix.com/ballysucks. to the site, its operator may lose interest in —❖— Bally Total Fitness Holding Corp. v. Faber, this particular cause and direct his or her 29 F.Supp.2d 1161 (C.D. Cal. 1998). Multiple ire to more recent, emotionally appealing, attempts to close www.ripoffreport.com, a or reactive targets. Non-action can be the site where consumers are invited to post most difficult course to take where there is a Reprinted with permission from the February 2009 complaints about companies, have similarly demand that something must be done. edition of the Law Journal Newsletters. © failed. MCW, Inc. v. Badbusinessbureau. 2009 Incisive Media US Properties, LLC. All rights reserved. Further duplication without permission is com, LLC, 2004 WL 833595 (N.D. Tex. 2004); Wh a t t o Do prohibited. For information, contact 877.257.3382 Global Royalties, Ltd. v. Xcentric Ventures, So, what to do. If a cease and desist letter or [email protected]. LLC, 2007 WL 2949002 (D. Ariz. 2007). Even is sent out, it should be written with the #055081-03-09-02