Expert Advice for Avoiding Complaints about Your Gripe Site

Here is an excerpt from an article posted on the Electronic Frontier Foundation (EFF) blog called, “Avoiding Gripes About Your Gripe (or Parody) Site.”   The article provides several tips and tools gripe or parody site owners can use in order to avoid trademark and copyright infringement claims.  Here are the six recommendations by the EFF:

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. Several court rulings have held that noncommercial uses fall entirely outside the reach of federal trademark laws, and lack of commerciality can weigh in your favor under copyright law as well.
2. Don't use the target's name alone in the domain name — adding "sucks" is good, but you can be creative. Point is, www.badco.com is more likely to be perceived by a trademark owner as confusing than www.ihatebadco.com. And remember, if your content is good and people link to it, your site will likely come up in Google searches for your topic, no matter what your domain name is. Often, the domain name isn't worth the trouble.
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. All too often, internet service providers will choose to take your site down simply because it's cheaper to do so than to pay a lawyer to evaluate whether your target's claims have merit. Services that have stood up for their customers’ free speech rights in the past are Computer Tyme, MayFirst and Project DoD. A list of other service providers that reportedly "won't dump you at the first sign of controversy" can be found online.
5. If you borrow from the target's own materials, such as text or images from the target's own websites, be selective. Make sure that you have taken no more than necessary to accomplish your purpose. Consider altering them in such a way that no one could possibly be confused about endorsement or sponsorship.
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. An offer to sell, particularly at an apparently inflated price, could be seen by a UDRP arbitrator (and possibly a U.S. court) as evidence that you are a cybersquatter.

Eric Goldman adds to the list of recommendations in his follow-up article on the Technology & Marketing Law Blog called “EFF's Guide to Griping, Plus Some Recommendation of My Own.” Here is a list of his suggestions:

    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 #6 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.