Intellectual property laws abused in quest to shutdown Lowes-Sucks.com

By Jacqui Cheng | Published: September 26, 2007 - 01:05PM CT

The tagline for home improvement superstore Lowe's may be "Let's Build Something Together," but that "something" sure isn't good PR when it comes to dealing with public criticism online. One angry customer was so dissatisfied with Lowe's work and customer service that he was spurred into putting up a web site called Lowes-Sucks.com in order to air his grievances. Lowe's was unhappy with this public display of dissatisfaction and took a "creative" approach to getting him to take it down—accusations of trademark infringement. After a bit of back and forth, Lowe's has relented by making an offer to settle out of court, but has suddenly fallen silent upon the customer's counteroffer.

Let's back up a little bit. Lowe's customer and Ars Technica reader, Allen Harkleroad, had a fence installed at his home by a Lowe's "professional." Upon further inspection, however, Harkleroad discovered that the $3,500 job came complete with what he considered to be shoddy workmanship. Fence posts were loose, parts became easily disjointed, and the gate door did not fully close, among other things. Harkleroad said that his dogs were able to escape several times, and that when he complained to customer service, he was told that the installer would need to come back out to fix the fence. When he called the installer, he said that Lowe's had to tell him to go fix the fence. Harkleroad decided that he would refuse to pay the remainder of his balance until the situation was fixed, but Lowe's was having none of that. The billing department told him that it wasn't their problem and proceeded to turn Harkleroad's account over to collections.

It was at this point that Lowes-Sucks.com was born, but Lowe's was having none of that either. Last week, Harkleroad received a cease-and-desist letter from the company, accusing him of unauthorized use of the company's intellectual property on his site. "Your use of the Lowe's Marks and your registration of www.Lowes-sucks.com is unauthorized by LF, distorts the goodwill of LF's federally-registered trademarks, and constitutes infringement of LF's trademark rights," reads the letter signed by Lowe's trademark manager Rebecca Green. Part of the problem with this accusation is that Harkleroad's site contains absolutely no logos, graphics, or other "marks" from Lowe's, and otherwise would not be identifiable as being related to Lowe's at all except for the name in the URL and the content of the site itself (which is unlikely to be mistaken for the company's official web site).

Harkleroad also points out that the infringement notice failed to identify the alleged trademark infringements, and fails to recognize that the site is a parody. "I also might remind you that USC 15 1125(a) is in correct [sic] in regards to your claim of infringement, you need to come up with something better than that. Better go grab that US Code book you are referring from and find something that you believe matches more closely," wrote Harkleroad in response to the letter.

At that point, the Electronic Frontier Foundation (EFF) hopped on Harkleroad's side to provide legal counsel and help defend him against what he claims were abuses of the law in an attempt to bully him—the story was also picked up by a number of online news outlets. Suddenly, Lowe's attorneys made Harkleroad an offer on Monday to settle the issue out-of-court, which Harkleroad discussed optimistically on his site. "My thanks to Lowe's for allowing us to (possibly) come to a mutually acceptable agreement for both parties, that is of course if this all gets finalized as I do believe it will. If it does this will be the last post or comment I make about the issue on this web site," he wrote.

But that's apparently where the story has ground to a halt once again. Harkleroad tells Ars that he and his attorney made a counteroffer to the settlement, and have since not heard back. "I think they are thinking that for the most part the issue is over," he told us. He has declined to comment on the details of the offer and counteroffer, but Harkleroad says that he has not heard any word back for several days.

Harkelroad's attorney, EFF staff attorney Corynne McSherry, acknowledged that the two parties are in discussions about a settlement, but declined to provide details as the "discussions are confidential." She did, however, point out that the courts have been clear that "gripe sites like this are protected—in fact, they want people to speak freely and share information about their experiences with various companies." She said that trademark holders sometimes lose sight of the point of trademark law, which is to protect consumers and provide them with good information about a company's product. Sites like Lowes-Sucks.com provide information on someone's consumer experience, she said, which is not only allowed under trademark law, but protected by the First Amendment. "There is no legal question here that they don't have a trademark claim," McSherry told Ars.

This isn't the first time companies have attempted to use some arbitrary aspects of intellectual property law to silence public criticism online. Universal Music Group sent DMCA takedown notices to YouTube over a highly critical video of rapper Akon was posted by Michelle Malkin—eventually the EFF got involved and the clip was restored to YouTube. The EFF also filed a lawsuit against "paranormalist" Uri Geller for sending DMCA takedown notices over videos that were not created by him, but by another company that had created a documentary that was critical of his work and posted it to YouTube.

So what is the lesson to be learned in all of this? While Harkleroad's case with Lowe's is not quite over, it appears as if the company is backing off of its trademark infringement claims (Harkleroad notes on his web site that the issue of officially retracting the claim is still being worked out between the attorneys). But the attempt to even make such a claim is still troubling, given the Internet's availability as a public soap box, where nearly anyone with grievances to air is allowed to do so.

In another case where Viacom "mistakenly" misused the DMCA to have a parody taken down, the company agreed as part of its settlement with the EFF to educate its reviewers about fair use and promised not to challenge the use of its content if it is "creative, newsworthy, or transformative." The EFF isn't exactly known for backing down over cases like this, so we look forward to hearing about whatever resolution may come out of the Lowe's case. Harkleroad told us that if the two are unable to come to a resolution, he is still willing to take the case to court in Georgia.