Internet Gripe Site Hit with Lawsuit

A couple who launched a Web site to gripe about the quality of a spray-on siding job done on their home have been sued for trademark infringement and become a cause celebre for free speech on the Internet.

Alan and Linda Townsend, of Dallas, Georgia, set up their Web site at spraysiding.com to complain about a spray-on siding product made by Alvis Coatings, of Charlotte, North Carolina, and collect testimonials from other dissatisfied customers.

Alvis has sued the Townsends for trademark infringement, a tactic commonly used by companies to squash criticism of their products on the Web. "It's a fairly common tactic, but it's not one that has been met with widespread success," John Morris, director of the Internet Standards, Technology and Policy Project at the Center For Democracy & Technology in Washington, D.C. told TechNewsWorld.

Desperate Act

"What you have here is a desperate attempt to suppress criticism rather than as a genuine trademark claim," Paul A. Levy, an attorney with Ralph Nader's Public Citizen Litigation Group who is representing the Townsends in the case, told TechNewsWorld.

Levy has filed a motion to dismiss the lawsuit against the Townsends, a motion currently being reviewed in U.S. District Court in North Carolina.

In the litigation, Alvis is seeking $75,000 in damages, unspecified punitive damages and payment of attorney fees.

Attempts by TechNewsWorld to reach Alvis were unavailing, but it has been reported that the company filed its lawsuit as a last resort after three "formal generous offers" were rejected by the Townsends.

"Trademark owners often try to use their rights to bully critics off the Internet," maintained Fred von Lohmann, a staff attorney for the Electronic Frontier Foundation in San Francisco.

Trademark law doesn't support that kind of behavior, he said. It is interested in one thing: Will consumers think a Web site is sponsored by or affiliated with the trademark owner? "In the critics' sites, it's almost inconceivable that anyone would be confused because obviously critics' sites are devoted to criticizing the trademark owner," he told TechNewsWorld.

Courts Protective

Because these kinds of lawsuits can cost hundreds of thousands of dollars to defend and are directed at people with shallow pockets, many cases involving gripe sites don't reach completion.

"A lot of them don't get to the point where there's a court decision," Deirdre Mulligan, director of the Samuelson Law, Technology & Public Policy Clinic in Berkeley, California, told TechNewsWorld. "But, in general, in a lot of instances where folks have gone after individuals who are engaging in criticism, commentary or competition, the courts have been pretty protective."

Some copyright attorneys who have looked at the Townsend lawsuit believe Alvis's case to be a weak one.

"This is free speech that the company being complained about is trying to prevent by flexing its monetary muscles," Karin Segall, an attorney with Darby & Darby in New York City, told TechNewsWorld via e-mail.

The Townsends' site does no more than it needs to in order to make its point, she said. There are disclaimers throughout the site and other statements that make it clear that the purpose of the site is to voice complaints about Alvis.

"As a lawyer representing trademark owners," she observed, "we try to argue for the maximum protection for our clients. But there is an outer boundary, and this goes way past that boundary into, in my opinion, the area of protected speech."

'Sucks' Helps

Segall's colleague, Amy J. Benjamin, suggested that the Townsends' Web site could have been more explicit about its intentions.

"There are a few 'sucks' cases which have gone to trial," she explained in an e-mail . "These are complaint sites which incorporate the trademark followed by 'sucks.com' such as 'reeboksucks.com.' Most of them have found in favor of the sites."

"This might have been an easier case for the defendants if they had added 'sucks' to their domain, as the addition of that term really decreases any likelihood of confusion," she added. "Maybe they should drop the current Web site and put up a 'sucks' one instead."

George Wheeler, a patent and trademark attorney with McAndrews, Held & Malloy in Chicago, argued that Alvis may be accusing the Townsends of abusing a trademark that the company may not even own.

"This appears to be harassment of the defendant by the plaintiff," he told TechNewsWorld via e-mail.

He explained that he researched the Alvis's trademark -- 'Alvis Spray On Siding' -- and found that the registration states, "No claim is made to the exclusive right to use 'spray on siding' apart from the mark as shown."

Defamation Road to Take

"This means that Alvis has no rights in the phrase 'spray on siding' as a trademark," he contended.

If Alvis feels wronged by the Townsend site, it has more appropriate alternatives, maintained Jonathan Zittrain, director of the Harvard Law School's Berkman Center for Internet and Society in Cambridge, Massachusetts.

"Defamation is the right way to go here, if the consumers aren't shooting straight with their complaints," he told TechNewsWorld via e-mail. "That's how the law protects companies from scurrilous accusations."

"The right standard for trademark infringement carves out a zone for noncommercial invocation of the trademark by others, even use of the mark to criticize the company," he added. "Defamation is the right tool if the criticism slides into outright lies intended to disrupt the business."