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Most disgruntled ex-employees sit and stew. But these days, more and more are getting even online: They’re launching so-called “sucks” Web sites, which skewer companies and shock shareholders. Spotlighted companies have been aggressive in response, filing suit to shut down the sites. But in the wake of the recent ASDA Group Limited v. Kilgour, companies may need to shop for something more legally compelling than the mere argument that sucks sites “confuse” consumers. ASDA is only the most recent in a string of decisions by courts and arbitrators favoring the sites’ viability. In November, Paul Kilgour and his site, asdasucks.net, received a broadly favorable ruling from an administrative panel of the World Intellectual Property Organization, or WIPO (a Geneva-based United Nations organization that arbitrates IP disputes). ASDA, the complainant, owns and operates a superstore chain in the United Kingdom, trades under that name, and owns several trademark registrations, including ASDA. The respondent, Kilgour, was described by WIPO as a “disgruntled ex-employee.” In an e-mail, Kilgour, writing from Scotland, emphasized that he had resigned his truck-driving job at ASDA; he had not been fired. “I have a strong difference of opinion towards some people in managerial positions within the company,” he wrote. Kilgour registered the domain name asdasucks.net in July 2001, while employed by ASDA. He already operated asdasucks.co.uk. This latter site’s content, directed at ASDA corporate management, was described by the WIPO panel as “scandalously and disgustingly abusive.” The disputed asdasucks.net, however, was not activated on the Internet until August 2002. Site visitors were linked to ASDA’s corporate site, asda.co.uk. ASDA’s complaint, in 2002, called asdasucks.net “confusingly similar” to its trademark and said the domain name was registered in bad faith. The WIPO panelist, Tony Willoughby, ultimately ruled in Kilgour’s favor, notwithstanding that Kilgour never responded to ASDA’s complaint. Willoughby challenged ASDA’s “confusion” argument that “the adoption of the name in the domain name is inherently likely to lead some people to believe that the complainant is connected with the domain name.” Wrote Willoughby: “By now, the number of Internet users who do not appreciate the significance of the ‘-sucks’ suffix must be so small as to be de minimis and not worthy of consideration.” While Kilgour’s linking of asdasucks.net to Asda’s official company site at asda.co.uk may have amounted to a confusing use of its domain name, Willoughby continued, that did not equate with asdasucks.net being confusingly similar to ASDA’s trademark. The only conceivable confusion regarding asdasucks.net could arise for Web visitors not fluent in English who “do not therefore appreciate the significance of the ‘-sucks’ suffix,” the arbitrator wrote. If Willoughby’s analysis becomes the prevailing legal trend, companies will have a tough time using the “confusion” argument. A trademark tarnishment approach might work better. But, absent any strong legal obstacles, Kilgour has said he will develop asdasucks.net (no word on the U.K. site). At press time, however, neither site was operative. This article originally appeared at law.com, an online service of American Lawyer Media. Sinrod is a partner in the San Francisco office of Duane Morris .

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