http://www.metrotimes.com/editorial/story.asp?id=2773

Cyber tussle

Sucks.com sites test laws governing the Web.

by Sven Gustafson
12/19/2001 8:00:00 AM

Back in February 1999, when construction was under way on a new shopping mall north of Dallas, Hank Mishkoff was so thrilled he created a Web site about the project.

The 52-year-old freelance database programmer, Web developer and writer had moved to Dallas from New York in 1980, when a trip to the nearest grocery store took 20 minutes. It seemed that would all change as the Taubman Company, a Bloomfield Hills-based mall developer with 31 malls in 13 states (including Great Lakes Crossing and Twelve Oaks malls in metro Detroit), began building The Shops at Willow Bend on flat prairie land in Plano, three miles from Mishkoff’s home. An architectural jewel, Willow Bend would have space for nearly 175 shops and restaurants when completed.

Mishkoff registered the domain name shopsatwillowbend.com in May of 1999, and by late spring, his Web site promoting the mall was up and running.

What he never expected, said Mishkoff, is that his project would lead to a court battle involving some of cyberspace’s most nettlesome issues: Who has the right to include a trademark name such as Shops at Willow Bend or Ford or Mattel in a Web address? And what happens when you append the loaded term "sucks" to one of those well-known names?

Mishkoff’s initial site consisted of information on the mall and hyperlinks to its stores. It included a statement, in bold text at the top of the home page, explaining it was unofficial. An official site, theshopsatwillowbend.com, went up later.

"Once they put up their Web site, I even put up a link," said Mishkoff.

But in May, Mishkoff received a letter from Julie Greenberg, an attorney from Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski, a Bloomfield Hills firm representing the Taubman Company. The letter accused Mishkoff of violating trademark laws and the Anti-Cybersquatting Consumer Protection Act (ACPA), and demanded that he surrender his domain name immediately.

"I was surprised that the first contact was in the form of a threatening letter from their lawyers," said Mishkoff.

Greenberg did not respond to numerous telephone calls requesting an interview.

When Mishkoff refused to remove his site, lawyers for Taubman sued in Detroit’s Sixth Circuit Federal Court; in October, after a string of correspondences, motions and accusations, shopsatwillowbend.com vanished from the Internet under court order. But the legal battle had just begun.

Taubman founder A. Alfred Taubman, whom Forbes magazine estimates to be worth more than $770 million, has more pressing concerns of late. Earlier this month, in a Manhattan federal courtroom, Taubman was found guilty of engineering an international price-fixing scheme to end competition between two of the world’s most prestigious auction houses, Christie’s and Sotheby’s. (Taubman was part of an investment group that owned Sotheby’s at one time, and served as chairman until 2000.) Taubman has since stepped down as chairman of the Taubman Company.

The sucks.com phenomenon

Well before he received the Oct. 11 letter ordering him to shut down the Web site, Mishkoff had registered five new domain names. Each was a variation on a sucks.com name, commonly known as a "complaint" site. Mishkoff had told Greenberg about the new domains, and said he would use them to create Web sites if she insisted on litigation.

So, starting Oct. 12, users could type in, for instance, willowbendsucks.com, and be directed to taubmansucks.com. There, Mishkoff recounted the legal tussle in copious step-by-step detail. In doing so, he was utilizing the Web as the "great equalizer," as he wrote on the site. "I can tell my story to millions of people and it won’t cost me a dime."

Complaint sites skewering large companies are neither new nor uncommon.

From his Grand Blanc home, Ronald J. Riley has created sites such as northworstair.org and proair-sucks.com, which he started after he said the airlines canceled flights on him, lost his luggage, and cost him thousands of dollars in extra fees.

"You use guerilla warfare tactics ... the same kind of thing a good investigative journalist does," he said of documenting the struggles. "It’s a lot easier than sending out press releases."

Then there is New Yorker Philip Kaplan. He created fuckedcompany.com a year-and-a-half ago "as a joke" on Web-based companies. "I just saw all the money that was going into these companies with no plans for revenue," he said.

His site has since evolved into a forum where employees publicly trash employers — or former employers — and submit confidential memos, usually announcing mass layoffs.

"I get a cease-and-desist letter almost every day," said Kaplan. So far, he has not been sued. But companies can — and do — retaliate.

At sucks500.com, for example, users can read panel decisions in the court cases Dan Parisi, the site’s creator, endured against Lockheed Martin and financial news guru Michael Bloomberg. Both sued Parisi for creating sucks.com sites that incorporated at least a portion of each company’s trademark. Parisi won both cases. Others, such as Pennsylvanian John Zuccarini, who registered 11 anti-Guinness ale sites, have lost their cases against large companies and thus, a forum for worldwide public critique.

Spence’s law

In the summer of 1999, then-U.S. Sen. Spencer Abraham led the introduction of a bill known as the Anti-Cybersquatting Consumer Protection Act (ACPA). The Michigan Republican’s bill had two primary objectives. First, it would protect trademark owners against "cybersquatters" who register a domain name of a famous company, movie or product with the intent of selling it to the company at a profit. The bill also guarded against Web site creators who register a recognizable domain name and use it to divert traffic to a competing or unrelated site, such as a pornography site.

To prevail under the ACPA, trademark owners were required to prove a cybersquatter had "bad faith intent to profit" from a mark. Secondly, the owner had to prove that person "registers, traffics in, or uses a domain name" in a way that would harm the owner’s commercial interests.

The bill had the backing of the movie industry and large corporations, but also plenty of critics, free-speech advocates and the Clinton administration among them. They feared that the bill’s ambiguous language could weigh in favor of big companies, who could in turn use the legislation, and its threat of a $100,000 fine, to intimidate those who register domain names legitimately.

Jessica Litman, professor of law at Wayne State University and co-author of the textbook Trademark and Unfair Competition Law, described the early form of the bill as "hugely over-broad."

"It would’ve been difficult to discuss Microsoft online without getting sued,"

she contended. Later drafts added free-speech protections, and the bill, which was attached to satellite television legislation the Clinton administration favored, was passed into law in November 1999.

But it still has critics.

Cindy Cohn, legal director of the Electronic Frontier Foundation, which promotes free speech on the Internet, is one of them.

"The ACPA is being used to scare people into handing over their Web sites without going to court because they can’t afford it," she said.

Taubman vs. Mishkoff

On the same day the injunction was granted to shut down the original site, Greenberg filed a new motion asking the judge to include taubmansucks.com and the other four new domain names.

"Here’s my theory," said Mishkoff, "I think the only critical motion before the judge right now is Taubman’s motion ordering me to take down the sucks.com sites."

Facing a company with deep pockets, Mishkoff has largely handled his own representation.

"Part of this is an experiment in seeing how possible it is to defend one’s self," he said. "If you’re willing to take the time, and you’re reasonably intelligent, you ought to be able to defend yourself."

Information culled from — naturally — the Internet, has helped Mishkoff navigate the barrage of documents, default judgments, motions, and legalese heaped upon him by Taubman lawyers.

He’s also posted notice of his case on an online news chat group, which has brought legal tips from "half a dozen" lawyers.

Nonetheless, the battle has taken its toll. "The more time I spend on this, I keep getting poorer and they keep getting richer" billing their client, Mishkoff said.

He has also accused his opponents of underhanded tactics.

Early on, Mishkoff was offered $1,000 to transfer the rights to his original Willow Bend site and the five sucks.com sites, according to correspondences posted online. Although he initially accepted the offer, he balked when new conditions were added. Taubman’s representatives went on to accuse him of having a "scheme to attempt to profit in some measure" from the sites.

"So many of the things that are in their briefs are inaccurate and are things I think they know are inaccurate," he said. "Maybe I’m naïve, but I didn’t think things operated that way."

Karen MacDonald, director of communications for the Taubman Company, said only, "We had received some comments and concerns over which was the accurate Web site for The Shops at Willow Bend."

The lawsuit, she said, "developed from confusion coming from customers."

"We always protect our trademark and our corporate name."

Disappearing sucks

Acting on a lawyer’s tip posted to the news group, Mishkoff submitted a motion for a change of venue from Detroit to Dallas. He has also solicited help from Paul Levy, an attorney for the Public Citizen advocacy group, in drafting a motion to dismiss the case for lack of proper jurisdiction. Levy will also represent Mishkoff in an appeal challenging the injunction against the original site.

In the latest development, 6th Circuit judge Lawrence P. Zatkoff granted Greenberg’s request to expand the preliminary injunction to include the five sucks.com sites. He also denied Mishkoff’s motions for dismissal of complaint and change of venue.

"I really wasn’t expecting it," Mishkoff said of the order. "I feel that he’s become very biased against me and I don’t know why."

Mishkoff still plans to appeal the original injunction, and has just filed for appeal of the new injunction. The case is set to go to court next August.

Meanwhile, Mishkoff hopes to have a new site, called giffordkrassgrohsprinklesucks.com, up this week. That site will begin with the expanded injunction, and any new developments thereafter. Levy has cautioned him that displaying material from taubmansucks.com may constitute contempt of court.

[Editor's note: After this story ran, Metro Times reader Ronald J. Riley wrote to tell us that the Mishkoff censored material is being made available on Riley's site at www.taubman-sucks.com.]

Ultimately, Mishkoff is at a loss to explain this trial.

"It doesn’t make a lot of sense to me," he said. "I don’t know why they’re doing this." Asked what’s at stake if he loses in court, he replied, "I literally have no concept of what that could mean."

Not even the experts know how long it will take before we have clear laws and interpretations on trademark issues around Mishkoff’s case and others like it.

Some experts say Congress needs to get involved again. Others are doubtful. "I don’t think Congress is in any mood to add any free speech right now. It’s a done deal, even before Sept. 11," said Michael Froomkin, a professor of law at the University of Miami who specializes in Internet and trademark law.

The Electronic Frontier Foundation is working to create a site called chillingeffects.org to serve as resource for people like Mishkoff who find themselves at the receiving end of a trademark dispute lawsuit. Meanwhile, Mishkoff and others like him are setting precedent.

"As the law gets more settled," said Litman, "there will be fewer cases on this and more on something else." She pointed out that the legal system has only been addressing domain name disputes for roughly five years.

"The law is slow," she said. "It takes us a while to work."

Sven Gustafson is a Detroit-area freelance writer. Send comments to letters@metrotimes.com.

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