April 16, 2009 in Uncategorized
By Justin Silverman
In classic David versus Goliath fashion, a small-time blogger uses his website as a sounding board to critique a large corporation. To emphasize the criticism, this blogger creates the site at an address such as thiscorporationsucks.com. Unamused, the corporation unleashes its full legal counsel on this individual, inundating him with unwarranted cease and desist orders. “This corporation is our corporation,” the orders state. “And although we may suck, you’re violating our trademark by using this domain.”
It’s a common battle that too often ends with Goliath claiming copyright victory. The blogger is either too scared to continue under the legal threats or he is simply without the resource to fight back. The website is modified to appease the company or it is taken down altogether.
Consider these examples: In Massachusetts, there is the recent case involving the site save-3abn.com which is critical of the Three Angels Broadcasting Network, or 3ABN. In Pennsylvania, a real estate developer claimed 1800whyrent.net violated its “WHY-RENT” trademark. In Virginia, the parent company of T-Mobile actually claimed copyright over the color magenta in its attempt to regulate the content of the Engadget Mobile news blog.
Now Goldman Sachs is entering the fray, taking a swipe at the owner of goldmansachs666.com and goldmansachs13.com. These domains lead to a blog critical of the company’s business practices. Media attorney Marc Randazza sums up the absurdity of the Goldman Sachs claims here; but a major point to be made is that the Florida blogger in this case is digging in his heels and readying his sling.
What makes this noteworthy is the infrequency of such defiance. More often than not, an individual blogger will balk at the first sign of potential legal trouble with a corporation the size of Goldman Sachs. Why assume the risk, the blogger may ask, when I can simply take the content offline? Though such thinking is understandable given the lopsided display of power, such surrender is only empowering the beast.
In its cease and desist letter, Goldman Sachs claims that the operation of the two domain names infringes on its trademark. The standard for such infringement is “likelihood of confusion.” According to Harvard University’s Berkman Center for Internet and Society, courts consider the following factors to determine whether or not there may be consumer confusion between the company claimant and the blog. See also Polaroid Corp. v. Polarad Elect. Corp. 287 F.2d 492 (2d Cir. 1961).
- The strength of the mark
- The proximity of the goods
- The similarity of the marks
- Evidence of actual confusion
- The similarity of marketing channels used
- The degree of caution exercised by the typical purchaser
- The defendant’s intent
By just briefly looking at the site in question, a reasonable reader would quickly understand that the blog is in no way affiliated with Goldman Sachs. I imagine such is the case with many similar trademark infringement claims, no doubt prompted by panicked executives and overzealous attorneys. Though trademark infringement can be a serious, legitimate claim, it should not be used as a means to rid the Internet of any unwanted criticism.
The blogger in this case is now seeking a declaratory judgement to defend himself against the Goliath Goldman. But even if he prevails, additional Davids are needed. It’s going to take more than one stone thrower to bring this legal tactic to its knees.