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.