Legal issues of a website such as [businessname]sucks.com

Question

What kinds of legal issues do websites such as [businessname]sucks.com have in terms of copyright infringement, libel and defamation, and/or other issues?

Let's say there is a website called [businessname]sucks.com. (See my example of walmartsucks.org below)

The domain [businessname]sucks.com is registered to a US citizen (private registration), and the website hosted in the US. The site allows users from the general public from the US and internationally. The [businessname] company is US-based, with a trademark on the name.

The site posts are written critiques and complaints and allegations about [businessname] by the website and domain owner; the general public can also contribute complaints and allegations.

The [businessname]sucks.com site will not use the [businessname]'s logo, and will have a clear disclaimer stating the [businessname]sucks.com is not owned or authorized by [businessname].

The TOS will state that the purpose of the site is to provide feedback and an outlet for complaints about [businessname] that are not allowed on the Is a site such as on the [businessname]'s own site.

1: Does such a site [businessname]sucks.com fall under Protected Speech?

2: Can the [businessname] force the owner of the domain [businessname]sucks.com to relinquish the domain and in effect, take down the site? And/or does the [businessname] have recourse against the web-hosting company, a third party that simply hosts the website?

3: If there are clear instances of libel or defamation by a public user, who is liable? The website owner who allowed the instances to be posted? Or the member of the public who posted the instance?

Example:

WalmartSucks

or at

Walmart Purposefully Ripping Off Customers

That site clearly shows the site owner and complaints and allegations by the general public (using their real names). The site is hosted by Google. The domain registration information (not private) is at Whois.

One possible point of difference is that the owner of the domain resides in Canada; Walmart does business in Canada, as well as Google, the web host.

Edit 11/08/16

Just came across this (though it is 6 years old at this point):

Gripe site prevails in domain cybersquatting case

A gripe site that incorporates a company's entire trademark into its domain is still protected under the First Amendment, a US District Judge has ruled. In the case of Career Agents Network v. careeragentsnetwork.biz, the judge said that the gripe site made no effort to bolster its own business and was noncommercial, therefore protecting it from Career Agents Network's trademark claims and cybersquatting accusations.

And, another site mentioned in the article Goldmansachs666 is still up and running.

Answer 1

I'm not sure about USA law, it's probably similar to UK law. In the UK a trademark is registered for a particular business activity, and you can't just blanket register for "all" activities as that would be anti-competitive. I have a trademark "Dreamcraft" for dream interpretation and related activities. However, the name "Dreamcraft" is also a registered trademark for a company selling luxury yachts, and again for a company selling up-market craft materials. A website or organisation that is a gripe-site using the same name would not be in breach of any of these trademarks because it wouldn't be in direct competition with any of these companies.

Answer 2

Assuming jurisdiction is in the US:

1. The site's content (assuming it were true) would likely fall under first amendment protection in the US. The site would not run afoul of trademark laws, as it is unlikely to cause customer confusion. There might be some other law at work here that could cause problems.

2. Not that I know of, but I could be wrong. If [businessname] has no recourse against [businessname]sucks.com, it certainly has no recourse against the domain registrar.

3. Probably not. The law which governs here is section 230 of the Communications Decency Act (CDA), which says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(47 U.S. Code § 230(c)(1) accessed from https://www.law.cornell.edu/uscode/text/47/230)

This has generally been held to preclude actions for defamation against websites for user-created content.

Answer 3

1: Does such a site [businessname]sucks.com fall under Protected Speech?

The website content could be classed as Protected Speech but the domain name itself includes their registered trademark which means any use of the registered name without their permission is unauthorised/misuse/infringement.

2: Can the [businessname] force the owner of the domain [businessname]sucks.com to relinquish the domain and in effect, take down the site?

It's possible, the affected business could:

(a) report the domain registration as an 'abusive registration' using the relevant domain name registry's Dispute Resolution Procedure, for a .com domain, the registry is operated by VeriSign and they have implemented the ICANN Uniform Dispute Resolution Procedure (UDRP). The company's who's registered mark is being used would be able to win the dispute simply on the basis that your domain name includes an identical string to a trademark, though they could also win the dispute if your domain name was slightly different but impaired or took unfair advantage of the distinctive character or reputation of the mark, or could be confused with the original mark. All domain name registries have to operate a system such as this in order to comply with ICANN rules - Trademark Post-Delegation Dispute Resolution Procedure (Trademark PDDRP) 04-Jun-2012.

(b) inform the hosting provider who's servers the website is on that their trademark is being infringed and that failure to remove infringing content will lead to a law suit for damages to reputation following failure to act. It is very likely that if you are using a hosting provider that you will be breaching their terms and conditions of service and within an hour or so of the provider receiving a notification from the trademark owner (often in the form of a legal notice/letter sent in an email as a PDF attachment), your hosting agreement could be suspended or terminated at the discretion of the provider. This option obviously will not apply if the website is hosted on a privately owned server on privately owned premises, though in this scenario it is likely they would issue a similar notice to your Internet Service Provider (ISP) and this could lead to your internet connection being suspended or terminated for violation of terms of service.

(c) obtain a court order against you for trademark infringement, requiring your cooperation in taking the site offline. This is often combined with a law suit for libel/defamation. In addition a court order for content removal could be sent to the hosting company and also to the domain registry, though typically hosting companies may not require a court order if they can see for themselves their own terms of service have been breached.

And/or does the [businessname] have recourse against the web-hosting company, a third party that simply hosts the website?

Possibly if they refuse to uphold and protect the trademark owner's rights.

3: If there are clear instances of libel or defamation by a public user, who is liable? The website owner who allowed the instances to be posted? Or the member of the public who posted the instance?

The member of public certainly for creating the libelous content.

The website owner is responsible for the content published on their website also, but they are unlikely to be held liable if they cooperate in promptly removing libelous content once notified, unless it can be shown that the website owner is encouraging libelous content to be posted.