As the number of 2016 presidential contenders begins to swell, an issue that often accompanies political campaigns has reared its ugly head.
It’s political cybersquatting. Consider this recent Lady Liberals’ Facebook post:
What’s in a name? That which we call a “domain”
Cybersquatting, or domain squatting, is registering, trafficking in or using an Internet domain name with a bad faith intent to profit from the goodwill of a trademark belonging to someone else. Domain names are issued on a “first come, first served” basis and acquisition of a domain name requires payment of only a modest fee.
Several considerations seem to motivate political cybersquatters. Some register numerous Internet domain names related to a canidate intending to hold them “hostage,” i.e., to sell the names for a (potentially substantial) profit to the candidate to whom the name or trademark belongs.
Others register a politician’s name hoping to draw attention to their own website where opposing, negative or critical comments about the politician are published. See e.g., TedCruz.com which has an image of a black box with the words “SUPPORT PRESIDENT OBAMA. IMMIGRATION REFORM NOW!” with a link to share the site via, for example, Facebook, Twitter, Pinterest, etc.
Anticybersquatting Consumer Protection Act
Cybersquatting is prohibited by the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), a 1999 amendment to the federal Lanham Act. To distinguish abusive domain name registrations from legitimate ones, the ACPA directs courts to consider nine nonexhaustive factors:
- the trademark or other intellectual property rights of the person, if any, in the domain name;
- the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
- the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
- the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
- the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
- the person’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;
- the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;
- the person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of the registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
- the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1) of this section.
15 U.S.C. § 1125(d)(1)(B)(i).
California Political Cyberfraud Abatement Act
California has also passed the California Political Cyberfraud Abatement Act (CPCAA) which prohibits conduct concerning a political website “that is committed with the intent to deny a person access to a political website, deny a person the opportunity to register a domain name for a political Web site, or cause a person reasonably to believe that political Web Site has been posted by a person other than the person who posted the Web site.” Although political campaigns are not “businesses,” and it is rare for politicians to register their personal name as a trademark, at least some national political candidates (most notably, Bill and Hillary Clinton) are regarded as sufficiently famous to have unregistered trademark rights in their names.
Commentary
Unfortunately, bringing an action in federal court to enforce the ACPA is often costly and time-consuming. It has been publicly reported that 2008 California gubernatorial candidate Meg Whitman spent several hundred thousand dollars pursuing a legal claim against an individual who registered numerous Whitman-related domain names, before eventually reaching a settlement that resulted in the transfer of the domains to her campaign.
Moreover, the outcome of other lawsuits alleging political cybersquatting has been decidedly mixed. In some cases, courts have found that using a political figure’s name to attract attention to a website is not violative of the Lanham Act if/where the use was not commercial, i.e., the user was not attempting to redirect potential customers from the plaintiff’s goods or services to the defendant’s goods or services. See e.g., Lamparello v. Falwell, 420, F.3d 309, 317 & n. 5 (4th Cir. 2005). However, other courts have held that a lack of profit motivation and the First Amendment cannot shield a defendant’s conduct where the defendant has used the plaintiff’s name/mark to confuse people into visiting his website. See e.g., Web-Adviso v. Trump, 927 F. Supp.2d 32, 47-48 (E.D.N.Y. 2013) (“The court emphasizes that it is not questioning Plaintiff’s First Amendment rights to comment upon and criticize Defendant and his businesses. However, he may not do so by using Defendant’s mark to confuse people into visiting his websites.”)
In an effort to curb abuses at less cost and expense, on February 17, 2015, Monolith Registry announced the opening of its registry for its newly created “dot-vote” (.vote) domain names. The dot-vote domain was specifically created in an attempt to prevent (or at least mitigate the effects of) political cybersquatting and ensure domain names “are only used by legitimate political candidates, political parties, referendums, ballot initiative campaigns and other political participants.”
According to the Registry, no one will be able to anonymously secure a .VOTE domain, and the Registry will do regular audits to ensure registrants are who they say they are. The Registry has also said deceptive or disparaging names will not be registered. The Registry has stated that it hopes that the .VOTE domain will become the web extension of choice for political candidates, PACs, parties and voter initiatives. More information about the .VOTE registry can be found here.
