Smoking sucks – it kills hundreds of thousands of people annually, and that’s a hard fact. Cancer, heart attacks, emphysema, stroke, are diseases that attack tobacco users around the world, relentlessly.
Billions of dollars are spent annually by the tobacco industry to maintain its user base, people addicted to nicotine and the tobacco high.
Among the popular cigarette brands is Marlboro, a brand of Philip Morris USA Inc.; the company filed a UDRP against the domain MarlboroSucks.com, which was registered in 1999.
The tobacco giant flaunted its registered trademarks, going back in use as early as in 1883:
“This mark is registered for use in connection with: “Cigarettes” in international class 34. This registration indicates that both first use of the mark in conjunction with these goods and first use in commerce commenced as of December 31, 1883.”
The Respondent asserted that First Amendment considerations, under the US Constitution, may trump the Complainant’s trademark rights.
Furthermore, they quoted other cases, where in each case a domain name, which included a third-party mark, resolved to a website, commonly called a “gripe site.”
The sites, noncommercial in nature and established by a disgruntled customer, provided content critical of the products or services provided to that customer by the owner of the corresponding mark. Because the sites merely provided critical commentary, in each instance the corresponding court did not view the use of the name as cybersquatting and upheld that use as a valid exercise of free speech under the First Amendment.
The Respondent further stated:
“They have no bad faith claim or trademark infringement case as the website has not been used commercially, but it is my right to own the domain and use it within my first ammedment [sic] rights. There is zero proof of cybersquatting or commercial use of the domain marlborosucks.com and this complaint should be thrown out immediately. … I would like this case resolved immediately so that I can proceed with my plans for the domain.”
Peter L. Michaelson, sole panelist at the WIPO, pointed out that the domain was being held passively, without any content that supported the Respondent’s claims of a “gripe site,” and ordered Marlborosucks.com to be transferred to the Complainant.
Clearly, a decision that sucks.
For the full text of this UDRP decision, click here.
