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Guinness Beer Really Sucks
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.
No more Guiness... sigh...
---
Book(n): Utensil used to pass time while waiting for the TV repairman
Of course, the fact that he never even bothered to reply to ICANN might have had something to do with this. Generally, if you want to preserve your rights, you should make a minimal effort to do so.
I've been wondering about this issue since 2600 brought it up with the whole verizonsucks.com thing. For those of you who don't know, 2600 found it entertaining that Verizon purchased loads of "anti-Verizon" domains such as verizonsucks.com. So, 2600 purchased verizonreallysucks.com and got hit with a cease and disist.
.sucks top level domain that was proposed by ICANN? I don't enjoy Microsoft, so I scoop up microsoft.sucks when the new domains come out, and what happens? More than likely, Microsoft will sue me for trademake infringment.
.sucks domain (and domain names like the ones in this article) without getting in trouble?
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
As much as I despise censorship on the Internet, I find it blasphemous that anyone would even suggest that Guinness could suck. Guinness is the nectar of the gods. In fact, I think I'll go register guinness-is-the-best-god-damn-beer-ever.com, oh wait, that'd probably be "identical or confusingly similar to" their trademark on the word "Guinness." Oh well. :)
We are all in the gutter, but some of us are looking at the stars. -- Oscar Wilde
Sigh... and I do so love Guinness Beer.
Nathan
If you don't have anything nice to say, say it often.
- Ed the Sock
guinness-really-sucks-and-this-isnt-their-website. com?
t his.com?
e ak-my-bones-but-words-will-never-hurt-me.c om
= -
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
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
If you read the decision, you'll notice that the domain owner never filed a response to Guinness. This is the legal equivalent of rolling over and playing dead. If you don't even bother to put up a fight, you'll lose.
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...
He registered a slew of domain names just to annoy Guiness.
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."
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.
--
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
-- Give him Head? Be a Beacon?
-- Give him Head? Be a Beacon? :P)
(If you can't figure out how to E-Mail me, Don't.
Secaucus Group (WIPOSUCKS-DOM)
= -
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
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
- 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?Save Maine's economy: write stuff down. All comments are exclusively my own, not my employer.
Well, there's this flag, but it isn't the Irish flag.
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
Linus Torvalds has spurred a love of beer amongst Linux users according to Jargon.org, he really loves Guiness. Wierd, really given the Guiness used to flavour their beer with dead horses in the early years IIRC.
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!
Try to hack my 31337 firewall!
The WIPO made the right decision in this case, given the evidence they had. The domain holder chose not to send a response to the dispute arbitrators and so they only had evidence provided by the complaintants (guiness).
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
Slashdot, would a spell-checker for posting be too much to ask? It's not rocket science!
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.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
from the wipo website:
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.
Don't forget that Friday is Hawaiian shirt day.
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,
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!
--
314-15-9265
ARE the Guiness beer people. The whole Guiness Book of World Records was started as a reference to settle * bar bets * and the Guiness beer people thought it was a natural promotional item as well.
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.
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.
No unauthorized use. Trespassers will be shot. Survivors will be shot again.
"my experience from local brewpubs tells me that stouts from hand pumped casks with natural carbonation are MUCH better than the same beer from force-carbonated kegs. "
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.
Some people might be interested in reading WIPO's WIPO Arbitration and Mediation Center page. I won't go too in depth, because then I'd be reciting their page, but it's worth looking at because it does pertain to Internet Domain Names.
for the record, right from the USPTO.l
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.
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
Will I retire or break 10K?
OpenNIC proudly lists .parody as one of its approved TLDs. Once you add a Tier 2 OpenNIC nameserver to your DNS configuration (in /etc/resolv.conf on Linux), you can access the .parody registration page.
Will I retire or break 10K?
Was this guy a cybersquatter or did he actually have a dispute with Guiness?
The Complainant submits that the Shields case is analogous to the facts at hand in that the Respondent changed the content of his www sites from commercial uses to purported "protest sites" after being served with a complaint by the owner of the trademark that he was infringing.
Well that seems to say that he was using the perfectly correct argument that a protest site is a valid reason to use a trademark as an excuse. lets keep going.
The Court found that "the vast majority of Zuccarini's many websites are not political fora but are merely vehicles for him to make money. . . .It strains credulity to believe that he uses 99.9% of
his domain names for profit but reserves his Joe Cartoon domains for fair and lawful political speech."
"...the Respondent admitted that he "put up the protest pages . . . just hours after being served with [the plaintiff's] complaint.""
So again it seems like this might actually be a reasonable case unlike some of the shit that we have seen WIPO get away with.
The Court found that the Respondent was a wholesaler of Internet domain names (defined as someone who acquires multiple domain names with the intent to profit from them), who owns approximately 3000 domain names, and that many of his sites featured advertisements for other sites and credit card companies where "visitors were trapped or 'mousetrapped' in the sites, unable to exit without clicking on a succession of ads."
So where does the geek stand? Does [s]he go with the eminently sensible argument proposed by the defendant in this case, or do they listen to the other side and realise that perhaps this is actually reasonable and the possible cybersquatter is just hijacking a reasonable argument for nefarious ends.
Have a look at the whole story before you post, and believe me, I don't think that this is open and shut either way.
-Tom
"The new wave is not value-added; it's garbage-subtracted" - Esther Dyson, Dec 1994
This is what happened here.
You may or may not agree with the rights of Guiness to the domain name, but this person did not want to be heard on the facts.
WIPO had actually looked beyond the complaint, and did at least a minimal analysis. In court, the judge would just issue a default and then just look at damages.
Fight Spammers!
There's another story about this particular Internet-parasite here.
I grant you that this is a sensitive case pitting freedom of speech against commercial interest (which is not always the bogie man). But c'mon...the respondent didn't even answer. He just wanted to throw a tantrum and get us all shouting epithets against the Big Bad Corporation. It would have been a far more difficult case, in my opinion, had he actually used a single "sucks" site to detail all of the failings and problems of Guinness, then fought it out on the grounds of freedom of thought and speech. But as it is, he just registered sites, made a few snide comments, then didn't bother to write anything for the record. Bad case, bad law. It's just too bad that this tar-covered case will be precedent now.