United Wins Injunction Against Parody Site
Joe Cortez June 30, 2017
Airline fights to end 20-year-old website collecting complaints against the carrier.
United Airlines is hoping to stop a 20-year-old website which has collected thousands of complaints against the carrier, over allegations of trademark infringement. The Independent reports parody site Untied.com has been handed an injunction by a federal court judge to stop using marks identified with the carrier, but could evolve to a complete shutdown.
The site was founded 20 years ago by Canadian flyer Jeremy Cooperstock after he tried to send a complaint to United about service aboard several flights. He said that after his letter was sent, he only received generic responses from the which did not address his concerns. This lead him to post his complaints online, turning into the parody complaint site Untied.com – a deliberate misspelling of United.
The Chicago-based carrier originally filed a lawsuit against Cooperstock in 2012, claiming his use of a modified logo and the line “An Evil Alliance Member” infringed upon their trademarks. A judge ultimately agreed with United, handing down the injunction to remove those marks from the page. However, the injunction allows the Cooperstock to keep the domain name – so long as he does not offer services “…in association with the same services as provided by the plaintiff.
“As expected of United Airlines, their lawyers played dirty,” Cooperstock told The Independent. “At the last day of trial before the Federal Court, United suggested that I should be ordered to stop using the domain name, Untied.com.”
A spokesperson for United said the airline was “pleased” with the decision, saying the website created customer issues. While they claim to respect the flyer’s right to free speech, the spokesperson told The Independent: “Our case was to protect United customers and avoid confusion by asking him to not use our intellectual property on his website and related channels.”
However, Cooperstock equated his treatment in court to a passenger that was dragged off a United flight earlier in the year. He vows to keep the website active, despite the financial costs associated with the legal battle.
A number of years ago the US Supreme Court recognized that parody is protected First Amendment speech, but lower courts still continue to find ways to ignore it. First, courts distinguish (wrongly) between whether the parody is the subject matter or the delivery mechanism, e.g. when someone spoofed the Cat-in-the-Hat with OJ Simpson being the cat, a court said it wasn't a proper satire being Dr. Suess wasn't the subject of the satire, OJ was. That is not applicable here; Second, courts jump through a million hoops to find market confusion. Large companies will hire (IMHO) rigged market research which will go out with a small snapshot of what is going on and see if people are confused. The problem is that two seconds of confusion is enough. All the disclaimer in the world don't seem to matter if there was momentary confusion. IMHO almost all the best parodies will have a momentary distraction; Third, courts will strain to file market or brand name dilution beyond the fact that there are a bunch of unhappy customers. Stated another way, courts read the parody exception so narrowly that even some of the best parodies of our time would be enjoined. I find United's lawsuit as personally offensive.