Terrible Ruling Allows Untied To Keep Its Domain But Not Its Soul

from the pointless-generosity dept

Let's jump back in the wayback machine for a moment and discuss Untied, your primary source for customer and employee complaints about United Airlines. When we last wrote about the site in 2012, we first mentioned that Untied.com has been a thing since 1997 before detailing the lawsuit United Airlines filed in Canada after it found that Untied.com had redesigned its parody site to look more like United.com.

Untied, if you are not aware, is a site that started with a single person's complaint about United Airlines customer service before morphing into an aggregator of such complaints from both customers and internal airline staff and former staff. If you want a bible to be written on what United has done wrong in the realm of customer service, you need not worry because Untied.com is that bible. Had this suit been filed in America, it would face a mountain of caselaw suggesting that so-called "sucks sites" are well within the boundaries of protected nominative fair use. It's worth mentioning that Untied doesn't actively attempt to mislead visitors to the site into thinking it's affiliated with the airline. In fact, visitors are shown a popup upon visiting that alerts them to Untied's status as a parody site. Even a cursory glance at the site's contents would confirm that status, as the entire site is dedicated to taking a metaphorical dump on United Airlines' reputation.

Despite the site having existed for so long, and despite the fact that the Streisand Effect exists, United Airlines filed its lawsuit, bringing all manner of attention to Untied that it otherwise would not have had, even as the airline is and has been maligned in nearly every corner of the internet for its laughable attempts at customer service. In its filing, United Airlines insisted that Untied had infringed its trademark rights and copyright rights with the site. It requested an injunction against the site before suggesting that just to make sure the injunction was clear, maybe the court ought to just hand the site over to United Airlines to boot.

"If the Court finds in favour of United Airlines and determines that an injunction should issue, the injunction needs to be clearly understood by the parties, and in particular the Defendant. As such, the Court may need to consider ordering the Defendant to transfer ownership of the domain name and other internet presences to ensure the injunction is clear and will be respected."

Well, the court has ruled on the injunction. The good news is that the court declined to hand over the Untied.com domain to the airline. The bad news is that court does rule that the site is infringing both United's copyright and trademark rights and instead said Untied can only keep its name if it ceases to be Untied at all.

The Plaintiff is entitled to an injunction restraining the Defendant’s use of the United Marks and the copyrighted works. The Court retains jurisdiction over this matter to provide effective relief against the Defendant. The Defendant may retain the use of the domain name www.untied.com – however, this must not be in association with the same services as provided by the Plaintiff.

As the folks who run Untied explain, the entire argument that United Airlines made in this action is that it too provides consumer feedback and complaint services for its own business, which is why it declared the public would be confused by the site. Effectively, this ruling allows Untied to keep its domain, but only if it ceases to be Untied.

Keeping in mind the position argued by United, that one of its "services" is dealing with passenger complaints, this would mean that the injunction would prevent Untied.com from existing as a site hosting passenger complaints against United. I feel that I have no choice but to bring this decision to the Federal Court of Appeal. Even if the wheels of justice are stacked against me as a self-represented litigant, defending myself against a massive corporation with virtually unlimited resources, I don't want to throw in the towel in defeat.

It's nice to see someone want to fight this out, but the focus here also needs to be on what an absolutely atrocious ruling this is from the court. Parody is to be protected on matters of copyright, whereas trademark law is focused on real or potential customer confusion within the marketplace. Again, this suit was filed in Canada, so the exact American standard for fair use doesn't apply, but no serious examination of the Untied.com website would lead to the conclusion that confusion was any issue, only strengthening the stance that the parody status of the site ought to protect it from the copyright claim. To, in the face of all that, first rule otherwise and then make this meaningless concession only adds insult to injury. For United to spend half a decade doing battle with a site that echoes many others' disdain for United's customer service in the name of trying to censor that site makes zero sense from a purely business perspective.

Perhaps, rather than spending half a decade fighting a website about customer service complaints, United Airlines could have spent that time and money providing better customer service and not dragging paying passengers off their airplanes.

Filed Under: canada, complaints, customer complaints, sucks sites, trademark
Companies: united, united airlines, untied

Time Warner Cable's Contractual Loophole Allows It To Tell Local Politicians It Has Received Zero Complaints

from the which-is-the-least-likely-thing-to-ever-have-happened dept

How plausible is it for a company that routinely ranks at the bottom of customer satisfaction surveys to claim it has had "no complaints?" Time Warner Cable did exactly that on its way to extending its franchise agreement with Keene, New Hampshire through 2023. Broadband Reports has the details:

Last month in Keene, New Hampshire, the Keene City Council was voting on whether to add a second local channel (which would give the city more revenue) through Time Warner Cable. In exchange, Time Warner Cable wanted to extend the franchise agreement with the city for an additional five years, or the year 2023. While the rest of the council agreed to give Time Warner Cable the extension, one Councilor had a bit of an issue with the way that Time Warner Cable was running their business.

Even though the Council voted 4-1 in favor of the second channel, Councilor Terry M. Clark expressed his disappointment with Time Warner Cable on their refusal to adhere to the original franchise agreement signed with the city years back that forces Time Warner Cable to tell the City Council about any complaints that they receive from customers:

"They reported back that they had no complaints," Clark said at last week’s meeting. "I asked, ‘Why?’ They said because they weren't required to write them down."

Yes, that last part is true. TWC's franchise agreement contains some language that allows it to whitewash its horrible track record. Bill Neilson at Broadband Reports spoke with the objecting council member, who forwarded him the no-problems-here contractual clause.

Except as limited by federal law or FCC regulations concerning privacy, Franchisee shall maintain a record of all such complaints and such records shall be available at Franchisee's local offices for at least two years for inspection by the Franchising Authority as it may from time to time request, during regular business hours and upon reasonable notice. Nothing herein shall be deemed to require Franchisee to maintain records of oral complaints, which can be handled to the customer's satisfaction in the course of the initial conversation in which the complaint is made or does not require technical field response. Upon request, the Franchisee shall provide to the Franchising Authority an accounting of the number and nature of such complaints.

Oral complaints apparently don't need to be recorded for posterity if they are handled with a single phone call, or if a technician is never sent out. The key here would seem to be "to the customer's satisfaction," but it appears TWC isn't going to let itself get bogged down by discussions about whether or not the end user was actually satisfied. Presumably, "handled in a single phone call" is still valid (and unrecordable) even if the person is bounced from useless rep to useless rep for hours or simply spends an unimaginable amount of time on hold. As long as someone on TWC's end can put a check in the "resolved" box at the end of the conversation (and keep technicians from leaving the building), the complaint is off the record.

If the person calls back, presumably a new record is opened for that single call and, again, dismissed once the problem is "resolved." This is cooking the books on low heat and since TWC is the custodian of the records, there's little anyone can do to point out where complaints are being vanished into the ether.

Councilman Clark strongly feels TWC just isn't being honest.

"It's my contention that most call-in complaints are not resolved in the course of the initial conversation and that they are required to account for the nature of all complaints," said Councilor Terry M. Clark.

But if only one council member is going to ask questions, it's highly unlikely TWC will suddenly become a model of corporate responsibility. Until there's danger of it losing the contract, it's not going to live up to even the most basic level of accountability. This is the other danger of cableco monopolies and duopolies: even cities themselves have no leverage against the only game in town.

It takes a humongous amount of chutzpah to claim you've had no complaints, when all of the following is on the record (gathered by Broadband Reports):

• Ranker.com ranked TWC 2nd worst with customer service.
• Ranker.com youth-users ranked TWC dead last with customer service.
• Consumer Reports stated that TWC ranked "very poorly with consumers when it comes to value for the money and have earned low ratings for customer support" and "Time Warner Cable ranked 16th overall for television service with particularly low ratings for value, reliability, and phone / online customer support."
• According to YouGov, Time Warner Cable has the poorest brand perception of the major pay TV service providers, with a score of -10.
• The American Customer Satisfaction Index (ACSI) ranked TWC second to last among Internet service providers. The picture wasn’t much rosier on ACSI’s list of pay-TV providers, with TWC ranking second to last in the subscription television industry.

This statement by TWC is the company daring the city council to call bullshit on its claims. But the city won't. The funds the city collects from every TWC subscriber (much of which goes to support local TV channels) won't be easy to replace, especially if an incumbent cable company poisons the well before leaving town. TWC has a good thing going and has fought the council every step of the way to ensure its profit margins stay intact.

Time Warner offered an adapter box for free through Dec. 18, after which customers had to purchase the adapter from the cable company. The box will also come with a monthly $1 fee beginning Jan. 1, 2015.

Clark convinced his fellow councilors to ask Time Warner to consider waiving the $39.99 installation fee for subscribers who couldn’t install the adapter themselves, but the company refused.

“There are many other things that we’ve asked of Time Warner,” Clark said last week. “They’re not willing to give rate payers anything unless it’s required by law, and even if it is required by law, it has to be pushing and shoving before they’ll acquiesce to that. I don’t think they deserve (a contract extension).”

Clark has been outvoted and TWC has another nine years to continue fighting city hall and tossing complaints in the trash. Does anyone (other than Comcast) think merging it with another cable company with an equally horrendous customer service record will really improve things?

Filed Under: customer complaints, customer satisfaction, customer service, keene, loopholes, new hampshire
Companies: time warner cable