BOOKMARK
PRINTAtari Tries to Power-Up, Comes Off as Total n00b
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When dealing with domain names that contain a brand or trademark and are owned by third parties, one of the first things brand owners must consider before determining a course of action is how those domains are being used. Many times here at FairWinds, we see domains containing our clients’ brand names hosting pay-per-click (PPC) ads or being used for other obviously trademark-infringing purposes. In those instances, the process of recovering those domain names on behalf of our clients is usually fairly straightforward.
However, we also occasionally see these kinds of domain names being used in ways that cause serious headaches for brand owners, but technically might constitute fair use under copyright and trademark laws. One example is what we call gripe sites, like IHateYourBrand.com or YourBrandSucks.com. While the content on these sites can wreak havoc on brand image, under the right circumstances it may constitute free speech and, as I mentioned, might be protected under copyright and trademark laws.
Similarly, fan sites can also constitute fair use. Fan sites that host no commercial content typically don’t cause brand owners quite as much grief, because their owners use them to sing the praises of a brand, product or service. One example is StarbucksMelody.com, a blog that describes itself as “An unofficial site, for any and all Starbucks enthusiasts everywhere!” The site is run by a woman named Melody Overton, who is a coffee aficionada and a Starbucks customer. She has she never worked for Starbucks, she just digs coffee.
Fan sites pop up around all kinds of brands and products. Unsurprisingly, the Internet is home to a rich ecosystem of fan sites dedicated to video games. There are even fan sites devoted to gaming systems that predate the Internet (and even the author of this post). That’s right, I’m looking at you, Atari.
While fans have a ton of love for the gaming company, Atari doesn’t seem to have a whole lot of love for the websites they build as platforms for their fandom. According to gaming sites, Atari has been on the digital warpath, sending letters to the owners of fan sites demanding that they shut the sites down and turn over the domain names. One recipient and self-proclaimed “retro-gaming nut” Andrew Davie, who runs a site at Atari2600.org, posted a farewell message on the site’s homepage where he pointed out, “The ’2600 platform has been near and dear to my heart for a long time.”
Here at FairWinds, we know better than almost anyone how important domain names and websites are in protecting brands and trademarks. But Atari’s aggressive "game-over" tactics may ultimately cost it some very loyal and long-time fans.
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Shifting sands and deep pockets
Trademark law, particularly as it intersects the internet legal domain (pun totally intended), has fascinated me ever since I discovered the issues in a class during my tour at law school.
The biggest problem, as I see it, is that the common law has in many respects failed to catch up with the type of problem discussed in the article as 'gripe sites'.
In my opinion (and very stale reading of the law), there shouldn't be a single issue that would give rise to a cause of action for trademark infringement, as long as the proper disclaimers are forthcoming (e.g. 'we are not this company/brand') and the information posted in relation to the trademark is TRUE.
Unfortunately, a large company can activate its IP law dept. or outside counsel to send a scary barrage of take-downs/cease-and-desist letters to individuals exercising their First Amendment rights. Without some deep pockets (and a penchant for risk-taking), most site owners would simply cower and do what they're told--even if they are more-than-arguably in the right.
It's sad to see commercial property (here, IP/trademark) rights trump (at least in practice) the much more sacred individual protections afforded by the First Amendment.
The Atari issue is just ridiculous...but it certainly demonstrates how *sometimes* corporate interests and legal know-how can steam-roll independent voices who are merely exercising their broad right to free speech. It's high time that Congress and the states (for common law trademark) take a serious look at overhauling the entire intellectual property regime to account for revolutionary changes in how society uses IP and the shifting sands of what legal regime provides sufficient 'motivation' for R&D and creativity--while balancing the public interest and the almighty First Amendment.
Rambling complete... :)
-Ryan A., JD