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YourBrand.SUCKS, If You Say So

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Brand Image Protection: For a trademark owner, what could be more important in burnishing a brand image than making sure it doesn't suck. But sometimes "what you resist will persist."

A well-known internet phenomenon is the "gripe site," where consumers vent about a particular brand, taking critical aim at a company or its brand of the same name. A typical brand-name gripe site is found at something like www.[insert well-known brand name]sucks.com. Case law has been consistent that there is no claim for trademark infringement for conducting a gripe site. Since a gripe site is not a commercial use of a mark, it is nothing more than a non-commercial exercise of freedom of speech, and therefore it cannot be regulated under trademark law.

Then along comes Vox Populi Registry Inc. with the new proposed top level domain, .SUCKS gTLD (generic Top-Level Domain). The stated purpose is to provide a gTLD for gripe sites, making it unnecessary to fabricate a gripe-site name that's coupled with .COM, .NET, or the like. Many trademark owners have been quite vocal in their criticism, arguing that Vox Populi is simply cashing in by charging $2499 or more to trademark owners to have first chance, during the "sunrise" period (the price to drop to $249 after the sunrise), to buy their own brand with the new gTLD. Of course, the main reason to buy their brand name with .SUCKS would be to prevent someone else from doing so.

Due to the outcry, accompanied by a sympathetic warning letter from the FTC, the sunrise period was extended and has only now closed as of June 19, 2015. Many trademark lawyers strongly recommended to their clients that they pay the ransom for the .SUCKS domain to prevent others from doing so.

But to what purpose? Since most brand owners will not use the domain, it will not turn up on a search. Because there are so many perfectly good alternatives to the .SUCKS domain, the real gripe site will turn up on a search of the brand name and "sucks." 

Adding fodder for critics will be the fact that the company did buy the .SUCKS domain name. The company may well be mercilessly, but deservedly, spoofed for what the real gripe site will say is the only instance of truth in advertising. Yes, that's right: "YourBrand.SUCKS is the trademark and domain name owned by YourBrand, Inc. All wrongs reserved."

Now that the sunrise period is over, brand owners can buy Brand.SUCKS for $249, a whopping 90% discount. But it still seems to me a waste of a brand owner's money.

YourBrand.SUCKS, If You Say So

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