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Sucks.com issue rears ugly head again

Free speech or trademark infringement?

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Just when you thought commonsense had prevailed and ownership of "sucks" websites had been clarified, US mobile phone company Nextel and a media school in Florida have reopened the issue.

Nextel has sent a legal letter to the owner of Nextelsucks.org, Ty Hiither of Michigan, threatening him over alleged trademark infringement.

It reads: "It has come to our attention that you have registered the domain name, http://www.nextelsucks.org. Your unauthorized registration and use of the domain name infringes our client's valuable trademark rights and unfairly trades upon NCI's fame and established good-will..." etc etc. "The activity that you are engaging in violates the Anti-Cybersquatting Consumer Protection Act, federal anti-dilution laws and federal unfair competition laws."

Meanwhile, Full Sail Real World Education took out a WIPO case against www.fullsailsucks.com on 9 July and the decision is pending*.

Surely all this was decided over two years ago with the spate of sucks.com domains both through the courts and ICANN's domain dispute process? We thought so at least. There were several rulings in which the addition of "sucks" at the end of a company name was seen as "fair use" and so could be excluded from trademark disputes. The most famous case concerned "ballysucks" - which, although it was a web page and not the domain itself, the court decided the owner had a valid free speech interest in using Bally's mark.

Also, after a few false starts (in particular when legendary WIPO arbitrator William Cornish decided against five varied "sucks.com" sites on the same day using his particular brand of interpretation), the UDRP (ICANN's flawed domain arbitration system) eventually came to realise that "sucks" was a legitimate use (wallmartcanadasucks.com was the turning point). Although it still doesn't rule out transferring "sucks" domains to company in certain circumstances.

It seems incredible then that Nextel would start a legal action on this basis. The letter arrived within a week of the domain being renewed by Mr Hiither, suggesting that Nextel is closely watching the domain market. It is therefore also possible that the legal letter was an automatic response and wasn't properly assessed by someone who knows about this area of law. But then since the company will never admit this or wish to be seen to be "backing down", it's best to presume the clampdown on "sucks" sites is official policy.

Ignoring the possibility of corporate bullying, perhaps Nextel thinks it has a chance. Corporate lawyers have been very busy the past two years pushing the new Anti-Cybersquatting legislation to its very limits. Maybe Nextel thinks it can sneak through a "sucks" case and set a precedent.

None of this makes Mr Hiither very happy though. He set up the site after having a particular bad time with the company - odd charges that weren't explained and the company failing to turn his phone off when requested, resulting in large bills and an unsympathetic accounts department - and uses the site to vent his anger.

Meanwhile, ICANN's UDRP process is always a pretty random affair and even though the most recent cases have tended to tear the older decisions apart, the idiosyncratic nature of WIPO decisions means that the case could leap the other way and mess up the consensus that had gradually been building.

Fortunately for Mr Hiither and for Ryan Spevack (owner of www.fullsailsucks.com), both have, knowingly or not, followed all the essential rules that make their defence watertight. Neither has attempted to make money from the domain nor offered to sell it to anyone, especially the complainants. They have not make any use of the related company's logos or materials without adding their own input and so copyright has not been infringed. Neither have represented themselves as the company in question nor in any way as affiliated with it. There are no libellous or unjustifiable comments about the company, and both wisely distance themselves from what is printed on their forums.

As such, Mr Hiither (nextelsucks) has a very strong case and if Nextel does insist on pushing the issue further, he should himself push for the case to be considered as "reverse domain name hijacking" or even "malicious prosecution". That would create an excellent precedent - although whether Nextel would let it get that far or whether Mr Hiither can afford to do so is another matter.

Mr Spevack is in a tighter spot, although if he pushes he may be able to clear up one important anomaly in the ICANN process. If the addition of "sucks" to the end of a company is (quite rightly) viewed as legitimate use since no one would logically not expect such a domain to be about the company itself - how on earth can it be right to hand that domain over to the company in question?

With letters and threats still flying about threatening people with action, we would all benefit from better clarification in this area. With luck these two cases will provide it. Either that or they will muddy the waters all over again.

* - Thanks to J Rossa McMahon for bringing this to our attention. ®

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