EFF’s Guide to Griping, Plus Some Recommendations of My Own
By Eric Goldman
The EFF has posted “Avoiding Gripes About Your Gripe (or Parody) Site,” which includes 6 prophylactic recommendations to prospective gripers:
1) Be noncommercial — no ads, no links to commercial sites, no affiliate links, no Café Press T-shirt sales, no fundraising if you can help it.
2) Don’t use the target’s name alone in the domain name — adding “sucks” is good, but you can be creative.
3) Have a prominent disclaimer that explains that your target is neither affiliated with nor endorses your site.
4) Find a service provider with backbone.
5) If you borrow from the target’s own materials, such as text or images from the target’s own websites, be selective.
6) If a mark-owner challenges your use of a mark in a domain name, don’t offer to sell it to the mark-owner without the assistance of legal counsel.
All excellent advice. I’d like to add a few suggestions of my own (all standard disclaimers apply–this is not legal advice, and you should consult your own attorney):
7) I would modify #1 to say don’t have any outlinks from your gripe site, period. Courts sometimes engage in bizarre link-counting exercises to determine commerciality, including in some cases considering sites two or more links away. Keep it simple and skip outlinks altogether if you can.
8) I would modify #5 to recommend against using the target’s logo at all unless it is absolutely essential to the gripe. Otherwise, courts can get hung up on the logo display even when if other aspects of a trademark claim are weak. See, e.g., BidZirk v. Smith and SMJ v. Lafayette Restaurants.
9) I would also modify #5 to say that if you recycle any graphics or photos from the target, consider presenting them as a thumbnail (with a link to the original source if necessary) rather than presenting them full-size. The thumbnail sizing may help with a fair use defense.
10) Never EVER include the target’s trademarks in the site’s keyword metatags. Some courts lose all sense of perspective the moment they see a trademark in the keyword metatag. Plus, the keyword metatag offers very little or no SEO benefit, and there are much more effective ways to spread the word about your site. It should be OK to include the trademark in the description metatag if the site description clearly communicates the griping nature of the website, but even then, be careful. Courts don’t know how to evaluate description metatags either.
11) Think carefully before buying the target’s trademark as a keyword for sponsored ads to promote your gripe site, Some courts are suspicious of keyword advertising and may unduly fixate on the ad triggering and not the underlying message.
12) Make sure every fact you say is 100% accurate and everything else is couched as your opinion. Plaintiffs will carefully read every word on your site text looking for anything that they can argue is inaccurate.