Sticking up for the big guy: United v. Untied.com

I got this story in my inbox — that United Airlines was trying to bully a website that is dedicated to complaining about United Airlines – Untied.com.

United Continental Holdings has sued a Canadian professor who maintains the 15-year-old complaint website Untied.com, which airs complaints from disgruntled United Airlines passengers and employees.

Two suits filed in Canadian courts allege the complaint site violates the airline’s copyright and trademarks. It also alleges the site violates the privacy of senior airline employees by posting contact information for those employees.

Reading that, I got all ready to write a post about what assholes United and its lawyers must be. Imagine my disappointment when I didn’t really get to do that.

The article continues:

United said it is not trying to prevent the site’s owner, Jeremy Cooperstock, from operating a website where people can express their views about United, but instead is trying to protect its intellectual property, such as its logo, and trying to alleviate confusion by United customers who might think they are filing a complaint with the airline on Untied.com.

“We are not requesting the website be shut down,” said United spokeswoman Megan McCarthy.

It was only after an April redesign of Cooperstock’s site, which made it look more like the new United.com, that the airline asked him to modify his site so customers would not be confused, she said, adding that the move was to protect customers and that the airline tried to resolve the matter without going to court.

It looks like United is not concerned about the content on the site, but how it is delivered. The site does look a lot like United’s. There are disclaimers everywhere, but I still don’t see United’s position being all that unreasonable. Yes, almost any idiot should be able to figure out that they are not really at United’s website. On the other hand, the fact that “untied” is a pretty common typo for “united,” coupled with the similarity in look-and-feel, makes United Airlines’ position a lot more reasonable.

If all they are asking is that the gripe site change some site design elements, this does not raise my hackles.

UPDATE: Since the site untied.com seems to have been taken down, here is a side-by-side comparison of the Untied.com and United.com websites.

Some out there, who don’t really understand trademark law, seem to believe that disclaimers on the Untied.com site mean that nobody would be confused by the mock United site. Others say that only a “moron in a hurry” could be confused by the two. I think that such opinions are ill-informed, and the product of the same instincts that I have — a knee-jerk reaction to start off on the side of the little guy against the big corporation; to immediately (without analysis) think that any attack on a critic’s site is an attack on free speech.

I look at these kinds of cases with a rebuttable presumption that the big bad corporation is the bad guy. That presumption, in this case, seems to be rebutted.

The first rebuttal comes from the information that United let the site go for 15 years, and only complained when the gripe site changed its site design. Historical screen captures show that the site didn’t used to look like that.

The second rebuttal comes from this: “Cooperstock offered to work for United as a paid consultant advising the airline on how to improve customer service. United declined.” If that is true, it is not entirely dispositive. Nevertheless, it does skew the optics of the situation a little. I would be interested to see Cooperstock’s response to that.

The third one comes from Canadian trademark law. Cooperstock is Canadian, and the case was filed in Canada. Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 SCR 772 gives us some instruction. In that case, the Canadian Supreme Court held that a court should measure the “likelihood of a mistaken inference” from the perspective of the “ordinary hurried purchaser.” The court considered the “ordinary hurried purchaser” to lie somewhere between the “moron in a hurry,” and the “careful and diligent purchaser.” The court relied upon Delisle Foods Ltd. v. Anna Beth Holdings Ltd. reflex, (1992), 45 C.P.R. (3d) 535 (T.M.O.B.), whic stated at pp. 538-39:

When assessing the issue of confusion, the trade marks at issue must be considered from the point of view of the average hurried consumer having an imperfect recollection of the opponent’s mark who might encounter the trade mark of the applicant in association with the applicant’s wares in the market-place.

As Cattanach J. explained in Canadian Schenley Distilleries, at p. 5:

That does not mean a rash, careless or unobservant purchaser on the one hand, nor on the other does it mean a person of higher education, one possessed of expert qualifications. It is the probability of the average person endowed with average intelligence acting with ordinary caution being deceived that is the criterion and to measure that probability of confusion the Registrar of Trade Marks or the Judge must assess the normal attitudes and reactions of such persons.

When we consider the issue of “initial interest confusion,” I think that Mr. Cooperstock has some problems. In fact, it seems to be a testament to United’s patience that they did not go after the Untied.com domain name a long time ago.

When looking at this, it is important to understand that there are two types of people who will be dissuaded from doing business with United: The first group are people who read the message on Untied.com, which boils down to “United sucks.” If Cooperstock convinces you of that fact, then that is the marketplace of ideas in action. That is Mr. Cooperstock providing a valuable service, and properly exercising his right to free expression.

On the other hand, there is a second group — a group that comes to the website through mistake, who lingers just a little bit, and by the numbers, a portion of them move on to other websites.

You see, the issue of consumer confusion is not resolved with the simpleton analysis of “nobody would buy a plane ticket from untied.com.” The issue is that more than a few consumers will type “untied” instead of “united” every day — just through the likelihood of that common typographical error occurring. If you are an “ordinary hurried purchaser,” you may get to that site, even with a popup disclaimer, and spend a few minutes there before you realize that you are not, in fact, at United.com.

What do you do then?

Most people would then do what they could to find the right website. But, it wouldn’t take a genius to realize that a certain percentage of people, who might otherwise have bought a ticket, will put it off, or not buy at all, just because the impulse passes. Another percentage may have sought out United.com, just for information, who then lose interest. Remember, a business’ website is not merely a place to purchase tickets. It is a valuable segment in its branding strategy. The pop-up and disclaimers are of little value, given that the average consumer isn’t likely to read the pop up or the disclaimers. When it comes to initial interest confusion on the Internet, even a few seconds’ long detour will cause some harm to the mark owner.

The fact is, a certain number of United’s consumers suffer inconvenience due to the site, and independent of the message on the site, they are driven away from doing business with the airline.

Were I judging this case, I’d say that Cooperstock has every right to say every last thing he says on his website. But, I think his choice of domain, and his attempt to make the site look and feel like United.com, both crossed the line. I think it went even further if United asked him, pre-suit, to simply make some design changes, and he refused. It goes over the cliff if United’s claim that Cooperstock offered to provide his “customer relations services” for a fee.

Sorry guys, I love the little guy as much as anyone else. I never fly United either, mostly because their website is a nightmare to navigate, and I haven’t thought too highly of their customer service either. But, sometimes the little guy is out of bounds.

11 Responses to Sticking up for the big guy: United v. Untied.com

  1. Ken says:

    I’d like to learn more before judging. But I’m a little disturbed by this: “United also notes that Cooperstock offered to work for United as a paid consultant advising the airline on how to improve customer service. United declined.” If true, that sounds a little Crystal Cox-ish.

  2. Rogier says:

    I looked at the site and there are “This is not United Airlines” disclaimers all over the fucking place. Even without those, it would take less than two seconds for non-morons to realize what Untied.com really is. So until I see information to the contrary, this looks like the usual brand-bully assholery. http://www.bakelblog.com/nobodys_business/2005/08/brand_bullies_s.html

    • There may be disclaimers everywhere, but I still think that United has a right to protect its copyrights, trademarks, and trade dress.

      None of that will negatively impact the message that the speaker wants to deliver. And, frankly, I don’t see how trying to make the site look like United’s site adds anything to his message.

      It seems to me that United’s position here is “say whatever you want, but don’t say it wearing a United Airlines mask.” I don’t have a problem with that.

      My instincts are to protect the little guy. But, here, it seems that the little guy is being a bit of a dickwad over issues that really don’t seem to matter.

      • andrews says:

        [airplane company may protect trade dress]

        In general, sure, no question. However, there are some problems with this argument. First and foremost, it does not appear that you can buy an airplane ticket from the site. That means he is effectively not in competition with them. The trade dress argument is much weaker than, e.g., you dress up your burger bar to have red background and yellow arches.

        The other problem is that you often do lift a fair amount of what you are criticising in order to make it clear who your target is. There, I suppose we look at Campbell v. Acuff-Rose, 510 US 569, and the case is somewhat weakened. Yeah, that’s copyright, but they’re going to have the devil’s own time with a Lanham act claim due the the first problem.

  3. Rob says:

    Wanted to see for myself. As of this comment, the site untied.com is ‘suspended.’ This is what it says: “This site has been suspended
    If you manage this site and have a question about why the site is not available, please contact iPage directly.”

    • It sounds like the ISP may have already caved and disabled the site. United spent a lot of time trying to shut untied.com down in the past, then they seemed to give up and just monitored it instead. For a while, about 30% of the site’s visitor count comprised United Airlines employees.
      The silly thing about this action is that the last time I looked at untied.com a few years back it was not being maintained because Copperstock had taken a job in Japan, and in any case most of the discussion traffic about flying experiences was moving to FlyerTalk..
      Since United tried to bully Jeremy Copperstock in the past, I am guessing that he is in no mood to allow them to bully him some more.
      United really doesn’t understand the Streisand Effect do they?

  4. underasteelsky says:

    Working from a screenshot at the ChTrib site: untied.com looks quite substantially different from United’s site. The single bitmap that was re-used has been substantially altered in obvious parody. Nearly all of the text is completely different. There is no cartoonish mascot. There appears to be some similarity of fonts, but it’s impossible to tell from the shrunken screenshot. (If so, they’re extremely common, and they are neither designed, owned nor controlled by United.)

    Untied appears to use exactly one rounded graphic design element. United’s site uses far more, and the one similar element doesn’t come close to extending across the page width on Untied as it does on United’s site.

    I was going to examine the page code to see if there were less-obvious similarities, but Untied’s hosting provider has either caved in advance or perhaps received a court order—I assume the former.

    In the event the site finds a provider with a spine and returns unchanged the similarity of the two appears limited to five to seven DIV elements, depending how you count, in similar places, with similar colours.

    I’m far from an expert on trade dress, but if using similarly-coloured boxes in similar places is in want of an injunction, quite a lot of people are in trouble.

  5. [...] There are obvious similarities. The guy behind Untied, Jeremy Cooperstock, insists that this makes sense since his site is a form of parody. While the likelihood of confusion argument is certainly stronger here (currently when you visit the website, you have to agree to a popup that warns you the site is not United’s), I still wonder how reasonable the lawsuit is. Cooperstock insists that it’s a SLAPP suit, though others think United may have a legit claim. [...]

  6. I know this is late, but I was on vacation and still wanted to comment :)

    The suspended part is caused by the site using more bandwidth than they paid the webhost for (I noticed it before it’s back up now). Most likely because of a surge of traffic and it being the end of the month, right before the bw resets.

    The site now has a disclaimer when you go to it stating that it is not affiliated that you have to agree to before continuing. You can see it at: http://minus.com/lzipO8zWCv59f

    Just some updates for you

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