Guinness Beer Really Sucks

I'm working on a story about WIPO and how it takes domains away from their owners. But today's example is egregious enough that I'm just going ahead and telling you about it now. Some guy who was annoyed with Guinness beer registered a slew of domain names like guinness-really-sucks.com. Guinness paid WIPO their $2000 and took them all away. Why? Because "guinness-really-sucks" is "identical or confusingly similar to" their trademark on the word "Guinness." Excuse me?

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.

Comments

He could have replied

[jms]

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.

Re:FuckGuiness (.com)

[Fat Rat Bastard]

Better yet, each person registers one domain name. I may be wrong here (and please correct me if I am) but they'd have to pony up their $2000 for each person, correct? Hell, make 'em spend a few hundred thousand to get "thier" sites back

Sigh... and I do so love Guinness Beer.

Nathan

What about...

[JoeShmoe]

guinness-really-sucks-and-this-isnt-their-website. com?

or...

guinness-really-sucks-and-i-am-not-angry-about-t his.com?

or...

guinness-never-learned-sticks-and-stones-may-bre ak-my-bones-but-words-will-never-hurt-me.c om

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

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= -

Re:What about...

[L-Train8]

I heartily agree. We cant have customers of companies getting pissed off and expressing their opinion. Especially if the company in question has spent a lot of money on advertising that says the company is great. A website saying that the company's product sucked would contradict all that advertising, and the end result would be customer confusion. Fortunately, we don't live in that kind of world. We have the WIPO to protect us from the evils of non-corporate entities expressing opinions on websites.

No response filed!

[Brian See]

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...

Get over yourselves, you lame-ass corporations!

[Accipiter]

This reminds me of the Veronica.Org dispute.

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?

It's not as clear-cut as it seems

[markhb]

Yes, reverse-hijacking the domains if they were legit protest sites would be abhorrent. However, those who read the original decision will find the following:

1. The previous domain dispute the guy was upset about was over guinnes.com, a typo domain;
2. He never had any sites up on the guinness-sucks domains he registered;
3. The Respondent (aka defendant) did not respond to the action he was served with;
4. Quoting the decision (Complainant is Guinness, the Registrar is CORE):

   The Complainant submits that the Respondent is a wholesaler of Internet domain names (defined as someone who acquires multiple domain names with the intent to profit from them). The Respondent has registered approximately 3000 domain names, approximately 1400 of which are registered with the Registrar. In support of this statement, the Complainant has submitted a print-out, running to thirty one pages, of the results of a search which the Complainant caused to be carried out on the Registrar's WHOIS database for domain names with NIC handles allegedly associated with the Respondent.

5. Again quoting the decision:

   The Complainant submits that there have been at least five ICANN decisions against the Respondent in which it has been found that he registered and used domain names that are identical or confusingly similar to famous trademarks in bad faith and without a legitimate business purpose viz. Hewlett-Packard Company v. Cupcake City, NAF Case No. FA0002000093562; Encyclopedia Britannica, Inc. v. John Zuccarini et al., WIPO Case No. D2000-0330; Hewlett-Packard Company v. John Zuccarini, NAF Case No. FA00040000994454; Bama Rags, Inc. v. John Zuccarini d/b/a Cupcake Confidential, NAF Case No. 0003000094380 and Bama Rags, Inc. v. John Zuccarini, NAF Case No. 0003000094381.

This guy is a squatter who didn't even bother to contest the charges. Why should we cry for him?

Oh, lord...

[sachmet]

I'm sorry, but this is ridiculous. No, not the decision. The 4k article on the front of slashdot decrying the WIPO for taking away some domain names.

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

Re:Oh, lord...

[jamiemccarthy]

In email, the guy told me that he didn't bother replying to WIPO because he knew that, whatever he said, he was going to lose anyway. He'd guessed that WIPO would decide his case before the facts were presented, and that, because he had lost some cybersquatting cases before, he was going to lose this one regardless of its merits.

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!) 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:

Prosecutor: "Your Honor, we can't find any proof that the defendant actually stole the case of beer. But he admits to being an angry young man, and he was convicted last year of stealing two magazines, a toothbrush and a pit bull."

Judge: "Lock him up!"

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

Precedent: Mad Magazine

[Eric Seppanen]

Hey, doesn't anybody value parody anymore? I bet you could go and poll all of the bureaucrats that make and support overbroad trademark protection and you'd find a significant percentage that once read and enjoyed Mad Magazine.

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!

--

Re:Boycott

[Timmy1138]

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...

[Elminst]

6. He misdirects potential Guinness customers. Quote:

The Complainant further submits that it would be likely that such consumers would choose to visit the such sites established by the Respondent, if only to satisfy their curiosity as to the content of such sites. Respondent would thus divert potential consumers of Complainant to his www sites by the use of said domain names.

7. But worse than that, he TRAPS THEM in endless clickloops, thereby generating money for himself and preventing the consumer from getting to any legitimate site. Quote:

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. Zuccarini received between ten and twenty-five cents from the advertisers for every click." Id. at 635, 641. The Respondent's "click-based revenue now approaches $1 million per year." Id. at 640 n.7.

8. And further on that topic, he WILFULLY ADMITTED that he registers the domains BECAUSE THEY ARE SIMILAR. Quote:

that the Respondent "admitted that he registered [the domain names] because they are confusingly similar to others' famous marks or personal names -- and thus are likely misspellings of those names -- in an effort to divert Internet traffic to his sites." Id. at 639-640.

I have no sympathy for this guy. The ONLY way he could have venerated himself was to actually publish a website that contained LEGITIMATE complaints against the company. He didn't.
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.

Re:You people just don't understand!

[Hacker Cracker]

Quoth the poster:

The problem is that you are all confusing the actions of a person with the actions of a corporation. If a person did this, maybe then they would be guilty of a serious lack of humor. But businesses aren't people! They have to act in certain ways because they are required to by law.

Err, sorry, but you're wrong--in the eyes of the law, corporations are persons. As such, they have a disproportionate amount of power compared to ordinary folks like you and me. As such, I won't be shedding a tear for any of 'em.

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

Re:Boycott

[TheCarp]

I disagree...

He had a problem with guiness beer - he has EVERY RIGHT to tell other people what he thinks about it. If it hurts guiness - then too bad.

Free Speech is a right - profit is not. If someone causes you to lose money because they are going around saying that your product sucks - then you should have 2 choices:

1) make a better product
2) lose money

A consumer has every right (no matter what any law says) to tell other consumers about products. As long as they do not lie - they have every right to give their honest opinion.

He wasn't diluting their trademark - he was using their trademark in a perfectly correct manner - he was using it to refer to THEIR PRODUCT.

> You boycotting Guiness isn't going to hurt the
> company

Boycotts of popular beer makers in the US back in the 80s got them to stop funding the contras.

...and for the record... guiness DOES suck. I like my beers dark - almost bread like. However I can't stand guiness - it just has this nasty flavor to it - not that its bitter (I like bitter) its just nasty - I can't even describe it. Maybe its the type of hops they use for dry hopping (I am assuming it is dry hopped from the flavor)

-Steve