Terrible Ruling Allows Untied To Keep Its Domain But Not Its Soul

from the pointless-generosity dept

Let's jump back in the wayback machine for a moment and discuss Untied, your primary source for customer and employee complaints about United Airlines. When we last wrote about the site in 2012, we first mentioned that Untied.com has been a thing since 1997 before detailing the lawsuit United Airlines filed in Canada after it found that Untied.com had redesigned its parody site to look more like United.com.

Untied, if you are not aware, is a site that started with a single person's complaint about United Airlines customer service before morphing into an aggregator of such complaints from both customers and internal airline staff and former staff. If you want a bible to be written on what United has done wrong in the realm of customer service, you need not worry because Untied.com is that bible. Had this suit been filed in America, it would face a mountain of caselaw suggesting that so-called "sucks sites" are well within the boundaries of protected nominative fair use. It's worth mentioning that Untied doesn't actively attempt to mislead visitors to the site into thinking it's affiliated with the airline. In fact, visitors are shown a popup upon visiting that alerts them to Untied's status as a parody site. Even a cursory glance at the site's contents would confirm that status, as the entire site is dedicated to taking a metaphorical dump on United Airlines' reputation.

Despite the site having existed for so long, and despite the fact that the Streisand Effect exists, United Airlines filed its lawsuit, bringing all manner of attention to Untied that it otherwise would not have had, even as the airline is and has been maligned in nearly every corner of the internet for its laughable attempts at customer service. In its filing, United Airlines insisted that Untied had infringed its trademark rights and copyright rights with the site. It requested an injunction against the site before suggesting that just to make sure the injunction was clear, maybe the court ought to just hand the site over to United Airlines to boot.

"If the Court finds in favour of United Airlines and determines that an injunction should issue, the injunction needs to be clearly understood by the parties, and in particular the Defendant. As such, the Court may need to consider ordering the Defendant to transfer ownership of the domain name and other internet presences to ensure the injunction is clear and will be respected."

Well, the court has ruled on the injunction. The good news is that the court declined to hand over the Untied.com domain to the airline. The bad news is that court does rule that the site is infringing both United's copyright and trademark rights and instead said Untied can only keep its name if it ceases to be Untied at all.

The Plaintiff is entitled to an injunction restraining the Defendant’s use of the United Marks and the copyrighted works. The Court retains jurisdiction over this matter to provide effective relief against the Defendant. The Defendant may retain the use of the domain name www.untied.com – however, this must not be in association with the same services as provided by the Plaintiff.

As the folks who run Untied explain, the entire argument that United Airlines made in this action is that it too provides consumer feedback and complaint services for its own business, which is why it declared the public would be confused by the site. Effectively, this ruling allows Untied to keep its domain, but only if it ceases to be Untied.

Keeping in mind the position argued by United, that one of its "services" is dealing with passenger complaints, this would mean that the injunction would prevent Untied.com from existing as a site hosting passenger complaints against United. I feel that I have no choice but to bring this decision to the Federal Court of Appeal. Even if the wheels of justice are stacked against me as a self-represented litigant, defending myself against a massive corporation with virtually unlimited resources, I don't want to throw in the towel in defeat.

It's nice to see someone want to fight this out, but the focus here also needs to be on what an absolutely atrocious ruling this is from the court. Parody is to be protected on matters of copyright, whereas trademark law is focused on real or potential customer confusion within the marketplace. Again, this suit was filed in Canada, so the exact American standard for fair use doesn't apply, but no serious examination of the Untied.com website would lead to the conclusion that confusion was any issue, only strengthening the stance that the parody status of the site ought to protect it from the copyright claim. To, in the face of all that, first rule otherwise and then make this meaningless concession only adds insult to injury. For United to spend half a decade doing battle with a site that echoes many others' disdain for United's customer service in the name of trying to censor that site makes zero sense from a purely business perspective.

Perhaps, rather than spending half a decade fighting a website about customer service complaints, United Airlines could have spent that time and money providing better customer service and not dragging paying passengers off their airplanes.

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Filed Under: canada, complaints, customer complaints, sucks sites, trademark

Companies: united, united airlines, untied