In his decision, Judge Robert Cleland said that CAN's case "must fail" because the company did not provide evidence that White had intended to profit from the domains. He did acknowledge, however, that White made some attempt to damage CAN's business by climbing the search rankings, but that it was only to warn other potential customers—an action that is protected under the First Amendment. Because White's websites didn't represent themselves as the real company websites for CAN and they provided accurate contact information, they were clearly gripe sites and did not infringe on CAN's marks.
As noted by TechLaw, the ruling included some extra details about what is required (or in this case, not required) to qualify as a "gripe site." careeragentsnetworks.biz did not include a disclaimer stating that it is not affiliated with CAN, for example—something that many gripe sites do for the explicit purpose of avoiding lawsuits like this—but that didn't make a difference in the ruling.
The decision has been applauded as a victory for the First Amendment, but is a frustrating one for trademark holders. Companies have been notoriously unhappy with the existence of gripe sites, though not everyone gives into legal threats. In 2007, we covered a case involving an Ars reader who was fighting a legal battle against Lowe's over his site, lowes-sucks.com, and in 2009, Goldman Sachs made headlines for trying to bully the creator of Goldmansachs666.com into shutting the site down.
When we spoke with EFF staff attorney Corynne McSherry in 2007, she told us that the courts have been clear that "gripe sites like this are protected—in fact, they want people to speak freely and share information about their experiences with various companies." As long as they don't represent themselves as the real company, it seems the courts are still on the side of dissatisfied consumers.
david derouen on 21 Jun 09By Ralph Nader & Carl J. Mayer New York Times, April 9, 1988 Our constitutional rights were intended for real persons, not artificial creations. The Framers knew about corporations but chose not to mention these contrived entities in the Constitution. For them, the document shielded living beings from arbitrary government and endowed them with the right to speak, assemble, and petition. Today, however, corporations enjoy virtually the same umbrella of constitutional protections as individuals do. They have become in effect artificial persons with infinitely greater power than humans. This constitutional equivalence must end. Consider a few noxious developments during the last 10 years. A group of large Boston companies invoked the First Amendment in order to spend lavishly and thus successfully defeat a referendum that would have permitted the legislature to enact a progressive income tax that had no direct effect on the property and business of these companies. An Idaho electrical and plumbing corporation cited the Fourth Amendment and deterred a health and safety investigation. A textile supply company used Fifth Amendment protections and barred retrial in a criminal anti-trust case in Texas. The idea that the Constitution should apply to corporations as it applies to humans had its dubious origins in 1886. The Supreme Court said it did "not wish to hear argument" on whether corporations were "persons" protected by the 14th Amendment, a civil rights amendment designed to safeguard newly emancipated blacks from unfair government treatment. It simply decreed that corporations were persons. Now that is judicial activism. A string of later dissents, by Justices Hugo Black and William O. Douglas, demonstrated that neither the history nor the language of the 14th Amendment was meant to protect corporations. But it was too late. The genie was out of the bottle and the corporate evolution into personhood was under way. It was not until the 1970's that corporations
