October 2, 2007
Lowes (tm) Sucks: Consumer Criticism and the Lowes Trademark Fiasco

We write rather frequently here at C3 on issues surrounding Intellectual Property (as well as things that suck, come to think of it), though, admittedly, home improvement falls a bit outside the usual area of focus. But, given some of the implications, both disturbing and humorous, of Lowes Home Improvement's recent trademark controversy, it seemed time to learn something about fence installation.

A couple of weeks ago, the register ran the story of Allen Harkleroad, a man who, after being frustrated by what appears to have been epically bad service from Lowes Home Improvement, went and did what we've all done on occasion: he complained.

On the Internet.

Harkleroad put up Lowes-sucks.com to detail his experiences and frustrations with the home improvement store, and, soon after, Lowes sent their lawyers into the fray, issuing a site take-down order and claiming that Harkleroad's site "constitutes an infringement of LF's trademark rights." With legal counsel from the Electronic Frontier Foundation (EFF) backing Harkleroad and the sudden attention from a number of internet news outlets, however, Lowes decided to settle the matter out of court, though it is uncertain at the moment what kind of agreement they will reach.

As ironic and amusing as it is that the efforts to quash bad publicity led to much worse, and much more widespread, publicity, Lowes' move to use IP as a means of shutting down criticism is part of a disturbing trend. According to this trademark law blog, these cases have their origins in the 1999 Anticybersquatting Consumer Protection Act, through which companies could take legal actions against people who registered domain names that violated their trademark with "a bad faith intent to profit from that trademark."

However, in many of the several dozen cases that have cropped up in the past few years, there is no such intent. Gripesites should be covered under first amendment rights, but there is enough ambiguity in the law that companies often see it as an opportunity to bully their way out of a little bad publicity. And as the Ars Technica article points out, this bears a striking resemblence to the misuse of the DMCA by Viacom and Universal to remove parody and critical content from YouTube. After all, if major media companies can do it, why can't a home improvement store?

For those who are interested in the legal aspects of this case, check out the great article at Vegas Trademark Attorney, including a number of interesting links to law articles on the topic of trademark suits.

Or, if you're really dying to know about fencing installation, scroll through the comments at the Techdirt article.