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May 10, 2002
10:06 AM Subscribe

MillerTime.comis a site run by the Miller family of San Carlos, CA since 1995. The site serves as a place for projects and code built and maintained by the family. They run their own non-profit group to help schools use technology, but their domain name, which they aren't interesting in selling has run afoul of Phillip J. Morris aka Miller Brewing Company, and is being shut down. They've filed suit against being labelled cybersquatters, but the domain is getting taken offline as we speak.
posted by mathowie (29 comments total)

*cough* Philip Morris has only one "L"*cough*

I'm surprised that this is still being pursued, given that rumors of the sale of Miller Brewing have been swirling for weeks.
posted by machaus at 10:17 AM on May 10, 2002

I actually think that the Miller family is on the wrong side of the law here.

This is not one of those situations where people established a URL which is obviously generic (e.g., "Miller.com") and had a trademark holder in particular industrial classification of "MILLER" (e.g., Miller Beer) try to steal it.

Nor is this a situation where someone established a URL which was arbitrary (e.g. "Intersys"), used and did business under that name, and, years later, someone else trademarked the "INTERSYS" name in some particular category and tried to swipe the URL.

This IS a situation where they took a very well known arbitary common law trademark, "Miller Time" and made it into their URL with no legitimate connection or authorization of the holder of the trademark, nor with any authorized fair use (parody, criticism, etc.) in mind. They clearly have no rights to the URL.

It is very important for those who generally oppose abusive use of cybersquatting legislation to identify the cases where companies are making valid claims to defend their intellectual property, less they seem simply anti-corporation, rather than pro-freedom.
posted by MattD at 10:20 AM on May 10, 2002

MattD, did you read this?

"The Miller family has owned millertime.com since 1995. Long after their web site went live, Miller Brewing company filed for trademark protection of the phrase, "It´s Miller Time!" A trademark on that phrase, when used in conjunction with the sale of beer, was granted in 2001. "
posted by ericost at 10:26 AM on May 10, 2002

this guy's case is much worse.
posted by signal at 10:26 AM on May 10, 2002

they do argue that the phrase "It's Miller Time" hadn't been granted trademark status until 2001 (from the Millertime.com website), but I'm inclined to somewhat agree with MattD here -- they're clearly playing off the advertising, uh, genius of miller brewing.

still, dammit, i'm stridently opposed to big companies taking domain names from the little guys, so i don't know what to do here.

i think the solution is for Miller to hire up that swedish advertising company again, GIVE the miller family FREE BEER FOR LIFE, and then massage the millertime.com website into a beautiful and glorious document of what a man gets when he's buyin' a beer -- you know, HOTT CHIX, BOOZIN' BUDDIES, a WASHBOARD GUT.

that and piss in a can.

yeah, ok, liver disease too.
posted by fishfucker at 10:32 AM on May 10, 2002

I'm sure that if Miller Beer people coughed up enough money for the domain, the Miller family would be more than happy to sell it to them. But instead, they sic lawyers on them and exploit legal loopholes. I've been through this with a domain I once owned but did not fight it. It's not fun getting threatening letters in the mail from lawyers. I keep meaning to write up my story since it's quite funny and involves carefully-worded legal letters describing a web page that contained love letters written in Swedish, the description of a picture of a kitten in a wheeled device, and some other funny stuff. It's fun to mess around with lawyers sometimes.
posted by camworld at 10:39 AM on May 10, 2002

As I've said in previous threads about this, the way the law is written, trademarks must be defended -- if they are not defended, they may become generic. PM, sale or no, wants the trademark to remain in its possession so they have to fight -- it isn't just a matter of buying it off. And here they've used the perfectly legal arbitration process, the one everybody agrees to use when they renew their domain.

Whether the trademark was registered in 2001 is irrelevant; all Miller would have to do would be to show extensive prior use, because registration is not required. For instance, the commonly-seen ™ symbol actually denotes an unregistered mark, as opposed to the ® symbol. Obviously, if that mattered the way it's suggested here, all I'd have to do would be to walk into the PTO and register any trademark I liked that hadn't been. It doesn't work that way.

Indeed, this same precedence philosophy sometimes does protect the "little guy", as in the WWF v. WWF fight. Guess who won?

I know there's a precedent here involving an advertising slogan, I just can't think of it. The Zippo and Barbie cases both involved commercial use. (Clue Computing and Nissan Computers are different because they weren't trying to trade on the name, though the latter may yet lose.)

machaus, note that the sale has no bearing on the arbitration -- they're selling the marks along with everything else, and the new owner would assume the same rights. And anyway, the lawsuit is by the family.
posted by dhartung at 11:04 AM on May 10, 2002

hi. my name is john q. public, and i'm a victim of trademark confusion. here i've been drinking code and family projects for years and all this time i thought it was miller beer. throw that deceptive family into the lion pit. and pass me one of those budweisers.
posted by quonsar at 11:08 AM on May 10, 2002

Since friends would often call us and say, "My computer is broken -- I need some Miller time," we finally settled on millertime.com as our domain name.

Right, and none of it had anything to do with "Miller Time" being a catchy corporate slogan?

This playing-dumb attitude reminds me a bit of what you see when you go to googel.com: "Your Googel Family Geneology Center-Coming soon". Though googel.com is a hundred times slimier, since they've deceptively attached their site to a pay-per-click search engine.
posted by dougb at 11:18 AM on May 10, 2002

I actually think that the Miller family is on the wrong side of the law here

they're clearly playing off the advertising, uh, genius of miller brewing.

You idiots, These people registered MillerTime.com six years before miller started using the phrase (or at least before they trademarked it)
posted by delmoi at 12:17 PM on May 10, 2002

Miller Beer was using the "Miller Time" long before 1996. That they didn't register it as a trademark before then is more or less irrelevant; the law grants protection for use of a mark even if it's not registered.
posted by kindall at 12:28 PM on May 10, 2002

You idiots, These people registered MillerTime.com six years before miller started using the phrase (or at least before they trademarked it)

wow. I must have been so drunk in the eighties that I thought those miller commercials were saying "It's Miller Time", when they were really saying "HEY, IT'S MILLER LIME!".

I now regret that my pre-adolescent drunkeness prevented me from enjoying this certainly delicious american-brewed hefeweizen, with just a hint of citrus.

note: that's right. January 1971 birthed the idea of Miller Time, which I'm guessing, in Miller Years, is about 24 years before the Miller Family played off this idea to come up with their domain name.
posted by fishfucker at 1:08 PM on May 10, 2002

This site says the "Miller Time" jingle arrived on the scene in 1983/1984. Ugh:

"Welcome to Miller time; well-brewed beer, it's your's and mine! Bring your thirsty self right here, you've got the time, we've got the beer, for what you've got in mind. Welcome to Miller time, yours and mine."

...And they've been exploiting the slogan ever since. For example, I remember being at a baseball stadium as a kid where the clock was sponsored by Miller and it said "Miller Time" underneath.
posted by dougb at 1:10 PM on May 10, 2002

Ooops...here's the site.
posted by dougb at 1:11 PM on May 10, 2002

Hey delmoi - the fact that the date the trademark was registered is irrelevant was present in more than one (easy-to-read) post above yours....who is the idiot here?
posted by jalexei at 1:20 PM on May 10, 2002

tone down the bile delmoi. You're running about 30/70 s/n from where I'm sitting
posted by mblandi at 1:28 PM on May 10, 2002

My lawyer friends always say that ™ should stand for 'technically meaningless', because there's no legal protection for unregistered trade marks. (At least here, there ain't.) Yeah, you can file a tort for 'passing off', but that's not trademark law.
posted by riviera at 1:33 PM on May 10, 2002

ACME Laboratories is a nice little freeware site that at least in the past has had to withstand pressure from Warner Brothers who wanted the name for obvious reasons. No mention of it on their site today, though there used to be. This rippage of nickname sites, especially new ones like 'big brown' is genocide.
posted by Mack Twain at 1:46 PM on May 10, 2002

MattD, I would agree if Miller Brewing had trademarked the phrase earlier on, but they could also argue that the phrase "Miller Time" is almost public domain at this point, being used in so many ways for decades now, unprotected.

Why didn't Miller Brewing Company trademark the phrase back in the 80's? I'm not being anti-corp here, I think the Miller's family claim to their domain is certainly up for debate, but the law seems to be firmly on their side.

Like copyright, one's right in trademark comes not from the federal registration of the item, but from its creation - which in trademark arises through use of the mark in commerce. Since Miller Brewing used "Miller Time" widely in the 80's and maybe earlier, it's pretty clear that any rights they have in the mark date back to that first use. The act of registering the mark is a formal recognition of that use from this date forwrd; with that registration come certain additional remedies as well.

Hwoever, the argument that "Miller Time" has passed into thepublic domain is a powerful one, and the Miller family might be able to challenge the trademark registration on that basis. I personally think they would lose, but it's enough of a threat to give Miller Brewing serious pause before pursuing a trademark action against the Miller family.

The Miller family web site doesn't contain much detail about the arbitration proceeding; I can only assume it was the Uniform Domain Name Dispute Resolution Policy arbitration prceedings. Under the policy, the complainant - Miller Brewing, must prove all three of the following:

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith.

I'm surprised an arbitrator would rule that a family named Miller had NO rights or legitimate interests in the domain name "MillerTime.com." Further, I think the evidence of "bad faith" is a bit sketchy as well.

The Miller family just might succeed in court. In the meantime, bocott Miller Brewing products. American beer is mostly swill anyway.
posted by mikewas at 2:39 PM on May 10, 2002

Regardless of what the law says, I don't think the Miller family were deliberately trying to misrepresent themselves or steal a copyrighted phrase. They were named Miller long before Miller Brewing started their ad campaign, and it seems inevitable that a certain percentage of people in the U.S. named Miller would get the phrase attached to them in some way. Furthermore, the site was around for 6 years before Miller Brewing decided to take action; if they wanted to give the appearance of defending their marks as dhartung said, that was the time to do it, not 6 years later when the trademark was granted. It seems pretty lame to wait all that time before acting. And I'd be willing to bet cash that it would have been way less expensive, in financial terms as well as in terms of good will, for Miller Brewing to have sent the Miller family a letter advising them of a possible conflict and offering a token payment and a grace period to ease the transition to another domain. Miller Brewing could have been classy and understanding about it, in other words, but they chose not to be. Classy and understanding aren't the American way, evidently.
posted by RylandDotNet at 2:49 PM on May 10, 2002

Oh, poop. Damn relative URLs.
posted by RylandDotNet at 2:51 PM on May 10, 2002

The reason the Miller family called their site "Miller Time" is because of the beer slogan. If it hadn't been for that, they wouldn't even want the domain because it wouldn't be "funny" or "clever." And any perceived value of the phrase comes from its longstanding use by the Miller Brewing Company, not by random people who happen to be named Miller.
posted by kindall at 2:56 PM on May 10, 2002

The reason the Miller family called their site "Miller Time"...

I realize that, kindall. I'm not claiming the Miller family have a defensible legal position. All I'm saying is that I don't think the Miller family twirled their collective moustaches when they saw the "Miller Time" connection and thought, "Ha! I'll steal their non-trademarked phrase and siphon millions of hits away from a corporate empire! Brilliant!"

I'm figuring they just thought it was clever and that surely Miller Brewing wouldn't mind, since there was no attempt to deceive people into thinking they were part of the beer company.
posted by RylandDotNet at 3:09 PM on May 10, 2002

Anyone siding with the Miller family feel a little differently after reading the arbitrator's report? The facts presented make this a lot less black-and-white than what is reported in the press.
posted by bragadocchio at 5:16 PM on May 10, 2002

Another shining example of corporate boardroom thinking -- avoid spending a couple of thou to placate a family, sic a team of attack dogs... er, lawyers on them no doubt at exhoritant costs.

Fark Miller... their beer was always of a quality reminescent of fetid urine anyway. Get yourself a real beverage, little girly man!
posted by clevershark at 7:09 PM on May 10, 2002

Did the family invent the phrase? No. Did they obviously take it from an advertising slogan not invented by them? Yes. It's that simple. It's just not right playing the poor hapless family card.

(And I'm certain it wasn't so well played that it was in the public domain back in 1995 when the Millers registered the domain.)
posted by timyang at 4:45 PM on May 11, 2002

The arbitrator seems to be attempting to prove that the Miller family acted in bad faith with some faulty (at best) logic:
Respondent says that at the time he registered the domain name, Complainant did not have any web sites using the word MILLER or the word TIME. The fact Respondent knows this to have been the case, demonstrates that Respondent knew of Complainant’s trademark. The further inference to be drawn from this is that Respondent chose the disputed domain name because of Complainant’s trademark.

The respondent could be aware of the fact that Miller Brewing did not have a website using the phrase "Miller Time" in it when he registered his domain because he searched for various domains using the word Miller to see what was available using his own name. The further inference to be drawn from that would be that the domain name was chosen not because of the trademark, but in spite of it -- or rather, not because of the trademark but because of Miller's failure to purchase the domain for themselves.

Many companies have chosen not to protect domains relating to their product's slogan, and many companies have found that someone else got their first choice of domain before they did, and so they've gone with alternates. (Some willingly, sobebev.com for instance, some not so willingly such as nissan.)

There is no way that someone looking for a beer company website could become confused when they find the site for the Miller family. There has been significant publicity for various family members which would direct visitors to the site, though Miller Brewing would like to claim that the bulk of the traffic to the domain is because of their advertising -- I don't think that there's any quantifiable way of proving that.

Since Miller does own and utilise www.millerbrewing.com, www.millerlite.com, www.itsmillertime.com (darn that sneaky apostrophe) www.mgd.com, www.millerbeer.com, www.millertalk.com and www.millertime.net, you'd think that they could've done one of two things -- gotten over their failure to act fast enough to get the .com as so many individuals/companies have done, or made a reasonable offer to the Millers to buy the domain from them. This is an international company grossing untold millions of dollars each year, I bet the family would've been happy with a few thousand to part with the name. Instead, Miller chose to be immediately confrontational.

Did the family invent the phrase? No. Did they obviously take it from an advertising slogan not invented by them? Yes.

How many domain names are based on slogans, mottos, lyrics, lines from movies, television shows, plays or other sources beyond the registrants imagination? Should they all be sued or shut down?
posted by Dreama at 5:13 PM on May 11, 2002

The arbitrator does appear to have adopted the Miller Brewing Company argument completely about the domain name, and she does seem to bend over backwards with her acceptance of the phrase as something that should inherently belong to the beer company. I don't think I liked that part of the report much.

But, something from the report which bothered me was that the family placed the domain name for sale through a domain name auction site last November. I don't know if that's enough to make the claim that the family was cybersquatting, but it looks as though the arbitrator felt that way:

Respondent contends that it has never sought to sell the disputed domain name, and has refused to sell it to Complainant each time it has made an offer to purchase it. Respondent further contends that its listing of the disputed domain name at an auction site was due to Respondent’s “testing of the database of the service that posted names for sale”, and that Respondent has no real intention of selling the domain name at issue.

The way that the arbitrator presents that sounds like she just didn't believe the Miller family.

I'd like to see the Miller family keep their domain name, if that's what they want. But that "testing of the database" line just rubs me the wrong way.
posted by bragadocchio at 2:39 AM on May 12, 2002

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