Sucksites are not the only variety of gripesites. In Coca Cola Co. v. Purdy, we saw that Purdy registered domain names like drinkcoke.org, mycoca-cola.com and mymcdonalds.com, linking them to a non-commercial anti-abortion website.  As the court stated: “it appears that defendant registered many of these domain names not because of stands the plaintiffs had taken on abortion, but rather to divert Internet users to websites that could tarnish and disparage their marks by creating initial confusion as to the sponsorship of the attached websites and implying that their owners have taken positions on a hotly contested issue.” Purdy, 382 F.3d at 785. 

In this case the problem of initial interest confusion has been recognized.  Initial interest confusion is a type of pre-sale confusion and actionable under the Lanham Act, occuring when a consumer, seeking a particular trademark holder's product, is instead lured away to the product of a competitor because of the competitor's use of a similar mark, even though the consumer is not actually confused about the source of the products or services at the time of actual purchase.  This theory, developed in the pre-Internet era is also applicable in cyberspace, as recognized in Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999).  

The initial interest confusion theory is used in trademark infringement and dilution cases, such as Coca-Cola v. Purdy.  In these cases, initial interest confusion is one of the factors determining whether there is a likelihood of confusion.   

Initial Interest Confusion Outside Cases of Bad Faith and Confusion

What about cases in which the trademark owner cannot prove bad faith under the ACPA or likelihood of confusion under the Lanham Act?  In cases against sucksites, he loses in favor of the cybergriper. Should it be that way? Even if there is no bad faith or likelihood of confusion, such a gripesite can still harm the trademark owner.

In her article in the New York Law Journal, Virginia R. Richards discusses this problem. She states that “the continued ownership and use of “sucks” domain names by third parties damages trademark owners in two ways. First, the trademark owner loses control over the manner in which its mark is used and displayed. Second, the mark is associated with content that directly attacks the trademark owner’s products and/or business practices, which tends to diminish the goodwill of the mark and associated business."

You might think that a customer will see the difference between a sucksite and the trademark owner’s site. However, if you realize that when people look for a trademark on the web through a search engine like ‘Google’ or ‘Yahoo’, they will also get a sucksite which uses the trademark in its domain name as a search result.  People may click on this link, confused or not about whether this is the trademark owner’s website.  Even if there is a disclaimer on the gripesite (which is not clearly stated or which people won’t understand or read), many people will be influenced on what they see on the gripesite in relation to the reputation of the trademark owner.    

Until now, the problem of initial interest confusion is not addressed in suckcases and in cases in which no bad faith or likelihood of confusion could be found. For trademark owners this is not a pleasant situation, given the problems stated above. In order to cope with this, Viriginia R. Richards suggests to follow the practice some World Intellectual Property Organization ("WIPO") panels have used.  She says:

And indeed, this may be a good procedure for sucksite cases and cases in which no bad faith or confusion could be found, because until now, most of the times the trademark owner come off worst.

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