August 26, 2002 6:05 PM PDT
Dot-com dead pool brakes for Ford
Phil Kaplan's F***edCompany.com, a Web site that has gained fame and some fortune collecting rumors and reports of layoffs, closures and other dot-com fiascos, found itself shut down for nearly two days after Ford Motor complained to the site's hosting provider about alleged trademark infringements.
In an unrelated development, the site is planning to shut down one of its popular spinoffs, Yahotties.com, following copyright infringement claims by the Associated Press. And in a third, more amicable move, the site changed the name of another satellite from Amazonscan to Junglescan to avoid entering into a complicated licensing arrangement.
The concessions come as F***edCompany is enjoying both growth and profitability, according to its founder Kaplan. The site has risen to No. 786 in rankings of Web site popularity listed by Alexa, a subsidiary of Amazon.com, up from a ranking in the thousands just a few months ago. Subscriptions to its unedited rumor feeds are up, and several thousand sites have used its advertising tool HTTP Ads.
F***edCompany is no stranger to cease-and-desist letters or to appeasing its critics. Early on in its career, Internet economy magazine Fast Company prevailed on Kaplan to change his Web site's logo because of trademark concerns.
At issue in the Ford complaint were Kaplan's headlines for items related to Ford layoffs. For example, in a letter dated July 12, Ford lawyers said Kaplan's headline "Ford, where finding a job is job 1" was "confusingly similar to Ford's advertising slogan 'Ford, where quality is job 1.'"
Kaplan at first pulled down the passages Ford objected to but inserted links to Ford's letter along with a crude reference to the automaker. In response, according to Kaplan, Ford threatened to sue Hostcentric, Kaplan's Internet service provider, which pulled Kaplan's site altogether.
Hostcentric could not immediately be reached for comment.
After a few more back and forth maneuvers, the dead pool is back in business--but only after meeting Ford's demands.
"The whole (problem) is that if you do a search on Ford and copyright lawsuit, you'll find a million examples of Ford doing this," Kaplan said. "If you're a company that size you can do anything you want in the world."
Greg Phillips, an attorney for Ford with the firm Howard Phillips and Andersen, countered that the company was responsibly protecting its trademark--something trademark holders are required to do consistently if they are to enforce them ever.
"Ford is probably dealing with about 100 different infringements related to the Internet in some way," Phillips said. "I think that's probably pretty standard given you have Ford and all their brands, including Jaguar, Volvo, Lincoln Mercury, etc. In my view that's in the ballpark of what I would expect from a company with so many famous brands."
He also dismissed the notion that Kaplan's headlines were not violations of trademark, but rather easily recognizable parodies of Ford's slogans.
Under the Federal Trademark Dilution Act of 1995, a person can be held to have infringed upon a trademark for "tarnishing" it by using it in a negative context. The famous example is a case in which the slogan "Enjoy Cocaine" was used in Coca Cola's distinctive script and was judged an infringement without the more typical trademark litmus test of creating confusion in the marketplace.
"Parody under the law doesn't magically fend off trademark infringements," said Gregory Phillips, attorney with Howard Phillips and Andersen. "In our view, this is the same thing as 'Enjoy Cocaine.'"
In Kaplan's other concession to critics, he plans Wednesday to retire his "Yahotties" Web site after copyright infringement complaints from the Associated Press.
Representatives from the Associated Press were not immediately available for comment.
By Kaplan's account, Yahotties--which featured pictures of young female sports and entertainment stars gleaned from Yahoo's news Web sites--earned him repeated letters of complaint from Yahoo. But Kaplan responded to these complaints by pointing out that none of the material he copied belonged to Yahoo, but to the Associated Press and Reuters.
On July 22, a lawyer for the AP mailed Kaplan its own copyright complaint, demanding that he remove the AP's copyrighted material.
Instead, Kaplan will retire the site--which at its peak he said was attracting several thousand visitors daily--altogether.
That will foreclose yet another revenue opportunity for Kaplan.
"I was so ready to auction off Yahotties on eBay," Kaplan said. "I was going to put in the eBay description that by the way it's possible some lawyers could contact you. But at this point I'm not going to bother auctioning it."