A couple who launched a Web site to gripe about the quality of a spray-onsiding job done on their home have been sued for trademark infringement andbecome a cause celebre for free speech on the Internet.
Alan and Linda Townsend, of Dallas, Georgia, set up their Web site atspraysiding.com to complain about a spray-on siding product made by AlvisCoatings, of Charlotte, North Carolina, and collect testimonials from otherdissatisfied customers.
Alvis has sued the Townsends for trademark infringement, a tactic commonlyused by companies to squash criticism of their products on the Web. “It’s afairly common tactic, but it’s not one that has been met with widespreadsuccess,” John Morris, director of the Internet Standards, Technology andPolicy Project at the Center For Democracy & Technology in Washington, D.C.told TechNewsWorld.
“What you have here is a desperate attempt to suppress criticism rather thanas a genuine trademark claim,” Paul A. Levy, an attorney with Ralph Nader’sPublic Citizen Litigation Group who is representing the Townsends in thecase, told TechNewsWorld.
Levy has filed a motion to dismiss the lawsuit against the Townsends, amotion currently being reviewed in U.S. District Court in North Carolina.
In the litigation, Alvis is seeking $75,000 in damages, unspecified punitivedamages and payment of attorney fees.
Attempts by TechNewsWorld to reach Alvis were unavailing, but it has beenreported 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 theInternet,” maintained Fred von Lohmann, a staff attorney for the ElectronicFrontier Foundation in San Francisco.
Trademark law doesn’t support that kind of behavior, he said. It isinterested in one thing: Will consumers think a Web site is sponsored by oraffiliated with the trademark owner? “In the critics’ sites, it’s almostinconceivable that anyone would be confused because obviously critics’ sitesare devoted to criticizing the trademark owner,” he told TechNewsWorld.
Because these kinds of lawsuits can cost hundreds of thousands of dollars todefend and are directed at people with shallow pockets, many cases involvinggripe 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 PolicyClinic in Berkeley, California, told TechNewsWorld. “But, in general, in alot of instances where folks have gone after individuals who are engaging incriticism, commentary or competition, the courts have been prettyprotective.”
Some copyright attorneys who have looked at the Townsend lawsuit believeAlvis’s case to be a weak one.
“This is free speech that the company being complained about is trying toprevent by flexing its monetary muscles,” Karin Segall, an attorney withDarby & Darby in New York City, told TechNewsWorld via e-mail.
The Townsends’ site does no more than it needs to in order to make itspoint, she said. There are disclaimers throughout the site and otherstatements that make it clear that the purpose of the site is to voicecomplaints about Alvis.
“As a lawyer representing trademark owners,” she observed, “we try to arguefor 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 ofprotected speech.”
Segall’s colleague, Amy J. Benjamin, suggested that the Townsends’ Web sitecould have been more explicit about its intentions.
“There are a few ‘sucks’ cases which have gone to trial,” she explained inan e-mail. “These are complaint sites which incorporate the trademarkfollowed by ‘sucks.com’ such as ‘reeboksucks.com.’ Most of them have foundin 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 anylikelihood of confusion,” she added. “Maybe they should drop the currentWeb 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 ofabusing a trademark that the company may not even own.
“This appears to be harassment of the defendant by the plaintiff,” he toldTechNewsWorld via e-mail.
He explained that he researched the Alvis’s trademark — ‘Alvis Spray OnSiding’ — and found that the registration states, “No claim is made to the exclusiveright 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 atrademark,” he contended.
If Alvis feels wronged by the Townsend site, it has more appropriatealternatives, maintained Jonathan Zittrain, director of the Harvard LawSchool’s Berkman Center for Internet and Society in Cambridge,Massachusetts.
“Defamation is the right way to go here, if the consumers aren’t shootingstraight with their complaints,” he told TechNewsWorld via e-mail. “That’show the law protects companies from scurrilous accusations.”
“The right standard for trademark infringement carves out a zone fornoncommercial invocation of the trademark by others, even use of the mark tocriticize the company,” he added. “Defamation is the right tool if thecriticism slides into outright lies intended to disrupt the business.”