"i See What You're Saying": Trademarked Terms and Symbols as Protected Consumer Commentary in Consumer Opinion Websites
| Jurisdiction | United States,Federal |
| Citation | Vol. 24 No. 01 |
| Publication year | 2000 |
I. Introduction
In the summer of 1999, Melinda Riddle frantically searched the Internet, looking for information about how to contact individuals ranked high within the corporate structure of U-Haul. An unsympathetic local franchisee had lost Ms. Riddle's reservation for a moving van, and she wished to vent her frustration to a corporate representative in the hope of finding a solution to the problem. The company's official website did not provide the desired phone numbers. However, the Internet search did turn up a wealth of information about the company and its practices-all via websites posted by consumers who had suffered a fate similar to that of Ms. Riddle. One site, calling itself the "U-Hell Web Site," detailed, along with horror stories of flaming vans, missing reservations, and unsympathetic customer service representatives, the story of U-Haul's attempted lawsuit against the site for its unauthorized use of the U-Haul logo and name.(fn1)
The Internet, with its ease of accessibility and wealth of information, has become a modern symbol of the classical "marketplace of ideas."(fn2) On the World Wide Web, ideas may be posted, perused, and panned by anyone who has a modem. This access to information is causing increasing worry on Wall Street and Madison Avenue as corporations watch their trademarks appear, without permission, on the home pages of thousands of computer users. Because the Internet is so accessible, individual websites can disseminate information, accurate or otherwise, to anyone interested in learning about the goods and services associated with a particular trademark. On the Internet, trademarks act as visual shorthand, instantly signifying a particular good or service. Additionally, the association of the trademark with information posted on a website creates a relationship between the company and the commentary in the mind of the viewer. Over the last decade, trademark owners have become increasingly outraged by the uncontrolled use of their marks and have started to take legal action against individuals who choose to use their marks without permission.
The initial scuffle between individuals and trademark owners broke out over the use and registration of Internet domain names. Companies tend to select domain names that incorporate their trademarks in an attempt to increase the chance that a consumer looking for information about their goods or services will find an official, authorized, corporate sponsored web page. A person looking for the website of IBM, for example, would expect to reach it by typing in the address "www.ibm.com." This domain name corresponds to the site's numeric address, allowing a user to locate the site without knowing its numeric address.(fn3) The assumption that a corporation will always use a trademarked name for its domain name is not always correct, however. Because Network Solutions Incorporated, the company originally responsible for the registration of domain names, did not require proof of authorization before allowing the registration of names including trademarked terms, such domain names became a point of contention almost immediately. "Cybersquatters" registered domain names that incorporated famous trademarks. These individuals hoped to force the trademark owner to pay significant amounts of money in exchange for the right to use the domain name.(fn4) As corporations began to fight this practice, they became increasingly aware of the ease with which unauthorized individuals could incorporate trademarks, not only into a domain name, but into a website as well. Trademark owners began to feel threatened by this unauthorized use and rallied around trademark laws in search of relief.(fn5)
As trademark owners sought to control the use of their famous marks on the Internet, websites run by fans of television shows and movies quickly became targets of corporate "cease and desist" letters. In 1996, attorneys for Viacom, the parent company of Paramount Television, requested that
Recently, corporate trademark owners' increasing concern about the Internet portrayal of their goods and services has created a movement against what one search engine has dubbed "consumer opinion websites."(fn10) These sites, such as the "U-Hell" website, are generally posted by individuals who feel they have been mistreated by a company and have not been given sufficient recourse elsewhere. Sites criticizing the practices and products of K-Mart, Gateway, and Intel have been contacted by lawyers representing the trademark owners and asked to remove all trademarked names or logos from the sites.(fn11) Although many simply remove the trademarked material, or the entire site, out of a fear of legal action, some web users are starting to resist.(fn12) According to Esther Dyson, chairwoman of the Electronic Frontier Foundation,
As individuals begin to square off against corporations by refusing to remove or alter critical websites, the legal rights of both parties will have to be more clearly defined.
II. Article Scope
Although all of the aforementioned actions on the part of trademark owners raise significant legal issues, this Comment is primarily concerned with the increasing frequency with which trademark owners challenge the rights of individuals to post consumer opinion websites. These sites, though seldom favorable to the trademark owner, present a type of information that often interests consumers-unsolicited, unsponsored opinions regarding a good or service. Prior to the advent of the Internet, such criticism was not nearly as accessible or as prevalent. Now, however, search engines will often pull up not only the official website for a particular good, service, or corporation, but also one or more corresponding consumer opinion sites as well. Thus, when searching for "Wal-Mart," an individual is presented with a list of several websites containing that term, including both the official website and the unauthorized site entitled "Wal-Mart Sucks."(fn14)
While companies fear the effects that this proximity of message will have on future consumers, American legal culture should not encourage the growing corporate drive to wipe such sites from the Internet. When a search pulls up both corporate-sponsored websites and consumer opinion websites, the Internet serves as a marketplace of ideas because the individual performing the search has access to a full dialog regarding the subject of his or her search, as opposed to just a single statement. This dialog benefits the potential consumer, and it may also provide corporations with valuable feedback, resulting in policy and marketing modifications that would not otherwise occur.
In this uncertain legal climate where many intellectual property issues remain unresolved, individual website owners fear that corporations have the power to wreak financial and reputational ruin upon those who cross them.(fn15) An examination of the trademark laws, however, justifies neither this fear nor the increasing boldness of trademark owners in demanding that trademarks be pulled from a consumer opinion website. Consumers engaging in commentary must have access to trademarked terms and symbols in order to specify the subject of their commentary; trademarks are designed to symbolize a good or service, and the exploitation of this symbolic function should not be reserved for trademark owners alone.
Although there are a wide array of unresolved trademark issues with regard to the Internet, this Comment will not address disputes involving anything beyond the visible content of an individual's website. Domain name and meta-tag issues, though often referenced in order to demonstrate trends in analysis, are not the subjects of this inquiry. Rather, this Comment will focus on the triumvirate of claims most...
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