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Guinness Beer Really Sucks
from the don't-say-revenge-don't-say-revenge dept.
Originally, the domain name system was first-come-first-served, and that worked pretty well. But corporations got trademark powers extended by having them formally built into the domain name arbitration process. Now, trademarks are a minefield.
And the mines are getting more powerful. If you're wondering how anyone but a blithering idiot could possibly confuse "Guinness Really Sucks" with Guinness itself, you're not alone.
The precedent here is the case of Wal-Mart Stores Inc. vs. "Walsucks." In that case, there were two things that led WIPO to determine that there was a likelihood of confusion. First, "the strength of the WALMART trademark."
And second -- interestingly -- the "intent in selecting the domain names."
Proving trademark strength is simple, a corporation just trots out its list of how many millions of dollars it's spent on ad campaigns, and how many devoted customers it has.
And in this case, proving the owner's intent was easy too. He made the mistake of getting mad at Guinness (ironically, about a previous domain case) and being foolish enough to say so. He posted on an old website:
I tell you, I was so upset when I got this STUPID ASS LETTER from the GOOFBALL JACKASS LAWYERS at guinness beer, that I went to register the domain name, GUINNESSSUCKS.COM, but guess what, that domain name is already owned by someone. Guess who. That's right. Guinness beer owns it themselves. I'm glad I'm not the only one who thinks they suck. THEY THINK THEY SUCK THEMSELVES!! ... So anyway I did go and register a few names about guinness beer and pillsbury. Tell me what you think....Coming Soon to a website near you!!
You may be saying, so what? Who cares whether he was angry or not? Doesn't he have a right to protest a corporation regardless of his emotional state?
You might think so, but you'd be wrong. His thoughtcrime is a big part of why these domains were taken away. The argument that Guiness put before WIPO was that "the Respondent admitted ... that he registered the [domain names] because he was angered."
Therefore, said Guinness, "the registration of the [domain names] was done in bad faith" -- which is the main thing needed to take a domain away from someone -- "and not for a legitimate purpose, rather Respondent's intent is to harass the Complainant."
I wish I could tell you that WIPO told Guinness to shove this attitude where the sun doesn't shine, and that even ordinary citizens have the right to say that some precious corporation sucks.
They didn't, of course. In their decision, they reference the owner's anger and then simply say that they "accept that the Complainant has made out a prima facie case that the Respondent registered said domain names with the intention of harassing the Complainant."
To them, anger means bad faith and no legitimate purpose, which are the key phrases that WIPO needs to assert before they take a domain away.
There are some kinds of speech corporations don't want to allow on this little thing we call the internet. In the new domain name system, it's not a "legitimate purpose" to say that a company sucks. Especially if you are one of those angry people who doesn't understand how great Guinness beer is. Sorry. Go find another domain, loser.
WIPO went on to point out was that there may be some non-English-speaking readers who may not be familiar with the word "sucks." These people might be confused as to whether they were looking at the Guinness homepage or not. Therefore the test of trademark confusion was met. I am not kidding.
Although Guinness "has not submitted any evidence of such confusion," they don't even need to: "it is unrealistic to require such evidence."
Here's the list of really confusing domains. Someone tell me how these URLs could be mistaken for the Guinness beer website:
guinness-really-sucks.com
guinness-really-really-sucks.com
guinness-beer-really-sucks.com
guinness-beer-really-really-sucks.com
guinness-sucks.com
guinnessreallysucks.com
guinnessreallyreallysucks.com
guinnessbeerreallysucks.com
guinnessbeerreallyreallysucks.com
guinness-beer-sucks.com
guinnessbeersucks.com
It gets worse. I might search on Guinness and turn up a "-sucks" website, and then I might actually be curious and click on it, thereby depriving the real Guinness of my eyeballs. Again, I am not kidding. This is actually part of the reason the domains were taken away from their owner.
I'll write some more about this later, maybe next month. If you know anyone who feels like their domain name was unfairly taken away, please have them contact me.
Boycott (Score:3)
No more Guiness... sigh...
He could have replied (Score:4)
How Will This Effect The Proposed .sucks Domain? (Score:3)
Anyway, with these kinds of things going on, how can consumers and activists make use of the
I guess my question is how can we (consumers) make use of the
Re:He could have replied (Score:3)
Nectar of the gods (Score:3)
Re:FuckGuiness (.com) (Score:5)
Sigh... and I do so love Guinness Beer.
Nathan
What about... (Score:4)
or...
guinness-really-sucks-and-i-am-not-angry-about-
or...
guinness-never-learned-sticks-and-stones-may-br
Feh. I'm going out right now and registering guinness-tastes-like-sh*t.com but then again, it might already be taken.
Might I suggest a massive registration rally in protest followed by massive search engine submissions?
- JoeShmoe
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
No response filed! (Score:4)
Because the domain owner never responded, the panel had nothing to go on but what Guinness told them. So, for instance, according to the panel:
There is no evidence before this Administrative Panel that the Respondent intends to use the said domain names as the addresses or links to any sites which could be described as "complaint sites". For this reason the issues canvassed in any of the decisions relating to free speech are not relevant in this case.
While this seems to go against common sense, that's what happens when the panel only hears one side of the argument. Just another result of the adversarial legal system, I suppose...
It's the intent! (Score:3)
What he *should* have done is created an anti-guiness site, and directed URLs to it. *then* he'd have a case.
Apparantly, he didn't. He didn't "make a web site to say that Guiness sucks", he "registered a bunch of domian names just to needle Guiness."
Missing Eyeballs (Score:3)
If this argument were taken just a teeny bit further, they could argue that when a user searches for "Guinness", the only pages that should show up are Guinness's own pages. No Guinness fan pages should show up. No parody sites. No fair use.
--
Get over yourselves, you lame-ass corporations! (Score:4)
A proud daddy registered a domain for his 2 year old daughter, Veronica. It was a website where he had some pics of his little girl online. Pretty simple.
Then Archie Comics deciced it was rightfully theirs, because one of their characters is named "Veronica".
"We had Veronica.com registered, and these people didn't want to give up the [Veronica.org] name for some reason," said Michael Silberkleit, publisher of Archie Comics.
Well Gee! Maybe he wants to keep the domain "for some reason", perhaps for his DAUGHTER?!
Interestingly enough, Veronica.Org doesn't exist, however the whois entry still shows the father owns it. Good.
If you're interested in the details regarding this specific incident, head here:
http://news.cnet.com/news/0-100 5-2 00-337433.html [cnet.com]
-- Give him Head? Be a Beacon?
Damn! (Score:3)
295 Greewich Street Suite 184
New York, New York 10007
USA
Domain Name: WIPOSUCKS.COM
Administrative Contact, Technical Contact, Zone Contact, Billing Contact:
Parisi, Dan (DP996) dparisi@GARDEN.NET
Dan Parisi
Post Office Box 1009
Secaucus, NJ 07094
973-503-1785
...how about wipo-really-sucks.com, anyone?
- JoeShmoe
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
It's not as clear-cut as it seems (Score:5)
- The previous domain dispute the guy was upset about was over guinnes.com, a typo domain;
- He never had any sites up on the guinness-sucks domains he registered;
- The Respondent (aka defendant) did not respond to the action he was served with;
- Quoting the decision (Complainant is Guinness, the Registrar is CORE):
- Again quoting the decision:
This guy is a squatter who didn't even bother to contest the charges. Why should we cry for him?Maybe he means this one (Score:3)
Oh, lord... (Score:5)
Let's look at the facts:
- The guy got pissed at Guinness and registered a bunch of domain names that, in effect, stated Guinness sucks.
- Guinness got pissed and played hardball to have the domains removed.
- The guy never responded to the WIPO inquiry - and he had A MONTH to do so!
- The guy has registered (and had taken away) numerous other domain names he registered in bad faith - the docket lists 5 other cases he's been involved in
- Finally, instead of doing something - ANYTHING - with the domain names, he posts that he took them from Guinness becasue he was pissed they took his original domain to another site.
I'm sorry, but he DESERVED to have those domains taken away. I've been working to get a domain for a group that I'm friends with, and they can't get it because some squatter claims to be 'opening an email service with 3 letter domains' but all he does is sell domains on it. And, it doesn't even point to itself! Plus the DNS entries contain 'THIS-DOMAIN-FOR-SALE' in whois...Slashdot needs to look a bit more carefully at the stories they run and select, lest too many more things like this pop up that ruin their credibility further.
Score: -1, Flamebait
But Linus likes it! (Score:3)
Oh what is a Linux geek to do? Boycott Guinness? Offend the founding father, Oh! Agony!
That's it. Im switching to BSD, Penguins like beer but Demons drink a mixture of sulpur and brimstone, as far as I know no one has tried to register sulphur-and-brimstone-really-sucks.com!
WIPO in the right, please do more research. (Score:3)
If you are sued and you choose not to show up in court and defend yourself, the judge will decide the case based only on the evidence presented by the complaintant and likely judge against you. If you get a sommons to appear in court for trial and decide not to show up you will likely be hauled off to jail. Likewise if you recieve a notice from a domain dispute arbitration board requesting a response to a domain being disputed you had best defend yourself or accept the fact that you will lose your domain.
The WIPO board had no evidence to go on except that presented by guiness and ruled accordingly because the domain holder chose not to respond. Guiness could have gone on to accuse the domain holder of serving the guiness laywers scalding hot coffee which the laywers spilled into their laps causing second degree burns and if the domain holder chooses not to defend themselves against these accusations than the WIPO has no option but to accept them as fact.
So, its a bummer that this dude loses his domains but thats what will happen if you don't bother responding to defend yourself.
-- Greg
Re:What about... (Score:4)
Re:He could have replied (Score:3)
No Response was received by the Center from the Respondent and on September 25, 2000, the Center sent a Notification of Respondent Default to the Respondent by post/courier and by e-mail.(emphais added)
and from the Uniform Domain Name Dispute Resolution Policy [domainmagistrate.com]:
This Paragraph sets forth the type of disputes for which you are required to submit to a mandatory administrative proceeding. (emphais added)
Included in this paragraph is:
iii. your domain name has been registered and is being used in bad faith.
I think the point here is that we don't know how the rulling would have went if the Respondent had done what is required of him as part of the contract he enters apon buying a domain. We cannot claim his rights were trappled when he himself will not assert them.
Sucks.com guys not capitalizing on their name (Score:3)
guiness.sucks.com
microsoft.sucks.com
verision.sucks.com
digitalconvergence.sucks.com
wipo.sucks.com
icann.sucks.com
To name a few.
Personally, I think we just need a DNS revolt. Or better yet, an entire network revolt. It wouldn't be too hard to put an infrastructure on top of the current net and wall off the corporate world from it. As I've suggested in the past, an invitation only VPN would work great. Couple that with a distributed naming system of some sort, and leave the current corporations out to rot. We built this network and we don't want them and we don't need them.
Hell reverting back to store and forward would be better than what they've given us.
Re:A Dumb Question (Score:3)
The World Intellectual Property Organization (WIPO) is an international organization dedicated to promoting the use and protection of works of the human spirit. These works - intellectual property - are expanding the bounds of science and technology and enriching the world of the arts. Through its work, WIPO plays an important role in enhancing the quality and enjoyment of life, as well as creating real wealth for nations.
With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialized agencies of the United Nations system of organizations. It administers 21 international treaties dealing with different aspects of intellectual property protection. The Organization counts 175 nations as member states. Please visit the links below for more information - both general and specific - on WIPO.
Re:Boycott (Score:3)
Cat's Meow III [brewery.org]
The New Complete Joy of Home Brewing, by Papazian [amazon.com]
Re:What about... (Score:3)
I can, for example, say that Guinness® is a fine brew made by a bunch of corporate bastards who suck Satan's cock. That's a fine exercise of my right of free speech, and no trademark law can oppose it.
I could even say that, in light of that, I will be foregoing Guinness® and Harp®, in favor of the Blue Ridge® and Wild Goose® lines from the Frederick Brewing Company (of which I happen to own a few shares), and recommend that you do the same. That's commerical speech, using Guinness trademarks in a way that Guinness certainly doesn't like, but it's not in any way an attempt to engage in fraud, so it too is perfectly valid.
microsoft.really.sucks domain (Score:3)
Just buy really.sucks, and you're done. ... and of course WIPO.really.sucks!
Then you can play with microsoft.really.sucks, guiness.really.sucks,
Precedent: Mad Magazine (Score:4)
I mean, at one point in time, it was actually funny when a comic spoofed movies and gave the spoofs confusingly similar names to the real, (trademarked) thing.
Oh, wait a minute! Mad Magazine is now owned by none other than our friends at Time Warner! Guess for them it's OK!
--
FYI, the Guiness record people. . . (Score:3)
Re:Right Decision (Score:3)
I have no idea what Zuccarini's complaint was with Guinness but it is more than apparent that he registered these domains with the intent to harrass them. Why would I want to support this kind of childish behavior?
Because free speech (espescially critical speech) is an important principle, and is one of the few effective tactics individual people have in counterbalancing the vast amounts of money and lawyers that corporations use to gain more and more power.
What's next? Will "Consumer Reports" magazine get shut down for publishing critical reviews of (trademarked) products? Plenty of software licenses already stipulate that one can't publish benchmarks without explicit permission -- it's not hard to imagine this trend extending to other products.
Re:Boycott (Score:5)
First, they are a international corporation. You can say anything to them. You can insult their mothers and their religion. It won't matter if you still give them your money.
Second, yes, the guy was being a prick. But he has the right to be a prick. He has the right to tell the world his problems with Guinness Stout and the company that makes it. He doesn't have the right to tell people that he makes Guinness and you should give him money in exchange for beer; but he wasn't.
And additionally, you'll read this... (Score:5)
And then when confronted with it, he could have responded with evidence or argument in his favor, thus using the system. He didn't.
Looks like he dug his own grave to me.
Stop talking out of your arse (Score:3)
Errr, Guinness has below normal carbonation, whether on tap or from a can. A small amount of liquid N2 is inserted into Guinness cans before they are sealed. When it boils, the pressure in the can is increased forcing Guinness into the widget. When the can is opened, the release in pressure results in the Guinness squirting through small hole(s) in the widget creating the head. It's nothing to do with carbonation.
I grew up in England. Most of the local brews have below "normal" CO2 levels. I hate carbonated drinks. Disgusting things. That's one of the reasons why you won't catch me drinking the bad (IMNHO) brews from Sierra Nevada (besides the bad taste).
"There is nothing special about this beer, and I strongly recommend that you try the stouts and porters from Sierra Nevada (pretty much US-wide) or your local craft brweries. If you don't like them, you are guilty of several of the charges above, and if you do like them, at least one of them will taste better than export Guinness. "
I think you're guilty of the stereotypical traditional American isolationism. (I known the stereotype doesn't hold true for the majority of intelligent Americans as I lived there for a while, and have a number of good friends there.)
The racial implications of your other statements are just utter bollocks. I'm not Irish (far from it!), I don't drink Guinness for any of the reasons you state... I drink because it *IS* the tastiest of all beers.
WIPO Arbitration and Mediation Services (Score:3)
Fair use of a trademark (Score:3)
http://www.uspto.gov/web/offices/tac/tmlaw2.htm
(d)(1)(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person--
(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and
(ii) registers, traffics in, or uses a domain name that--
(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or
(III) is a trademark, word, or name protected by reason of section 706 of title 18, United States Code, or section 220506 of title 36, United States Code.
(B)(i) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to--
(I) the trademark or other intellectual property rights of the person, if any, in the domain name;
(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
(IV) the person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
(V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person's prior conduct indicating a pattern of such conduct;
(VII) the person's provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person's prior conduct indicating a pattern of such conduct;
(VIII) the person's registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person's domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1) of section 43.
(ii) Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.
(C) In any civil action involving the registration, trafficking, or use of a domain name under this paragraph, a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark.
(D) A person shall be liable for using a domain name under subparagraph (A) only if that person is the domain name registrant or that registrant's authorized licensee.
(E) As used in this paragraph, the term "traffics in" refers to transactions that include, but are not limited to, sales, purchases, loans, pledges, licenses, exchanges of currency, and any other transfer for consideration or receipt in exchange for consideration.
(2)(A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if--
(i) the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office, or protected under subsection (a) or (c); and
(ii) the court finds that the owner--
(I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or
(II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1) by--
(aa) sending a notice of the alleged violation and intent to proceed under this paragraph to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar; and
(bb) publishing notice of the action as the court may direct promptly after filing the action.
(B) The actions under subparagraph (A)(ii) shall constitute service of process.
(C) In an in rem action under this paragraph, a domain name shall be deemed to have its situs in the judicial district in which--
(i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or
(ii) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.
(D)(i) The remedies in an in rem action under this paragraph shall be limited to a court order for the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark. Upon receipt of written notification of a filed, stamped copy of a complaint filed by the owner of a mark in a United States district court under this paragraph, the domain name registrar, domain name registry, or other domain name authority shall--
(I) expeditiously deposit with the court documents sufficient to establish the court's control and authority regarding the disposition of the registration and use of the domain name to the court; and
(II) not transfer, suspend, or otherwise modify the domain name during the pendency of the action, except upon order of the court.
(ii) The domain name registrar or registry or other domain name authority shall not be liable for injunctive or monetary relief under this paragraph except in the case of bad faith or reckless disregard, which includes a willful failure to comply with any such court order.
(3) The civil action established under paragraph (1) and the in rem action established under paragraph (2), and any remedy available under either such action, shall be in addition to any other civil action or remedy otherwise applicable.
(4) The in rem jurisdiction established under paragraph (2) shall be in addition to any other jurisdiction that otherwise exists, whether in rem or in personam.
Re:Oh, lord... (Score:5)
And he was right. This was clearly a case of criticism of a corporation, whether he'd gotten around to putting critical content on the domains' website or not. You can't get more fairly critical than "-sucks.com". But they threw the book at him.
And in the decision (read it [wipo.int]!) a large part of their reason for taking away his domain was that he had squatted on other domains before. They talked about a lot of those other cases.
In other words, it was something like:
I find this just as offensive as their other specious reasons (anger, eyeball-stealing) but didn't get into it in the story because it's a lot of background that would take a while to explain and this was just supposed to be a short story. The long versions are coming sometime in November (I hope) and will go into detail about more cases.
The fundamental issue is, was this guy treated fairly in this case? And it seems clear to me that the answer is no.
Frankly, I can't think of any good reason why any individual should under any circumstances have their "XYZsucks.com" domain taken away and given to corporation XYZ, ever.
Jamie McCarthy
Re:No response filed! (Score:3)
Because the domain owner never responded, the panel had nothing to go on but what Guinness told them.
Nonetheless, the complaint still has to satisfy the requirement that the said domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, and this is what is unsatisfactory about the decision.
Look, Guinness could probably have succeeded under business defamation in any number of jurisdictions (including the one in which Guinness plc is registered), though perhaps not in the US. Arguably this is not a bad thing. Remember the name Guinness is valuable property, into which a lot has been invested, the creation of these domain names is equivalent to someone coming along and scratching EAT THE RICH along the side of your new BMW (though this arguably is not a bad thing either).
That the Panel should hold that a different standard applies to the deceptively similar test, merely because such a site might be discovered by a search engine is disturbing. It reflects a growing tendency for the Law (both at curial and legislative levels) to wet its pants whenever a matter in some way involves the internet. The argument is often put that the Law cannot keep pace with technological change, IMHO the opposite is the case. While some adjustment is doubtless necessary (such as recognising that domain names do have to be brought into step with trade mark law), the Law is particularly adapted to dealing with novel situations. Thus cybersquatting, which the US legislature felt it necessary to criminalise by statute, was simply dealt with under equity in Australia (in the Melbourne-IT case). If established legal principles were applied fairly, irrespective of whether the issue was one involving the net (ooh, it cyberspace ... better be really draconian here!), I believe we would not be seeing findings as aburd as 'guinnessbeerreallysucks' being confusingly similar to 'guinness' (in a way which 'guiness' clearly is btw.)
Re:You people just don't understand! (Score:4)
The guy may have screwed up, but apologizing for the corporations (by way of saying he deserved this treatment) is sickening.
-- Shamus
This space for rent