United Airlines Grounds Complaint Website

by Bennett Jones LLP
Contact

Bennett Jones LLP

A joke does not work if it needs to be explained. While some complaint and parody websites may constitute fair dealing, close copying of trademarks and copyrighted works, combined with mean-spirited commentary, will not fly.

Case

United Airlines, Inc. v. Cooperstock, 2017 FC 616

IP Type

Trademark, Copyright

Summary

Dr. Jeremy Cooperstock is an engineering professor at McGill University in Montreal. In the late 1990's, he started a personal web page titled "Poor Show" to share his negative experiences with United Airlines. After receiving letters from other travelers reporting similar incidents, he registered the domain Untied.com ('Untied' being a play on the word 'United' to connote disorganization) and used it as a consumer complaint site. After several years of operation, Cooperstock launched a redesign of the Untied website which closely resembled, and was meant to invoke, the United Airlines website.  This included the same font and size for the word UNTIED and a modified version of United's Globe logo with a superimposed and crudely drawn frown.

After sending several demand letters, United Airlines sued Cooperstock for trademark and copyright infringement.

United Airlines prevailed on all issues.

On trademark infringement, Cooperstock unsuccessfully argued that the modified trademarks on his website could not infringe United Airlines' registrations because he was not providing a "service", particularly since there was no commerce involved (he received only nominal income through advertising and donations).  The Court rejected this argument, holding that the key element of "services" is the benefit to the public. Comparing the website to a consumer help line, the Court found that Cooperstock offered services of information delivery and advice on legal rights.

In finding a likelihood of confusion, the Court relied heavily on the close similarity between the marks and the nature of the services. Evidence of actual confusion, while neither necessary nor determinative, was filed by United Airlines. This included evidence from a travel agent who mistakenly submitted a complaint intended for United Airlines to Cooperstock's site, and also documents that showed consumers made complaints to Untied.com that were intended for United Airlines.

This evidence, in addition to the disparaging uses of United Airline's trademarks (the angry eyes and frown imposed on the Globe logo) assisted United Airlines in succeeding in its depreciation of goodwill claim. 

On the copyright claim, there was little debate that Untied.com was a substantial copy of the United Airlines site. Cooperstock's defence was that his website was a parody of United Airlines and constituted fair dealing. The ability to claim parody as fair dealing has only been part of the Copyright Act since 2012, and has received little judicial consideration since. While not defined in the Act, parody has two components: the evocation of an existing work while exhibiting noticeable differences and the expression of mockery or humor. 

After questioning whether parody could ever be successfully invoked when there is consumer confusion, the Court found the dealing in the copyrighted works to be unfair. The intent was mean-spirited and meant to defame or punish United Airlines, not humorous criticism.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.