[EL] Cybersquatting/Issa-Wertheimer

Thu May 12 15:22:09 PDT 2011

ICANN's Uniform Dispute Resolution Process (UDRP) will likely be a better
forum for Corwin, if she wants to wrest the domain away from the squatter.

UDRP panels have been much more willing than courts to give credence to the
complainant-friendly idea that Internet-user confusion far outweighs any
nominal speech expressed through the domain name itself. And in another
strain of UDRP decisions, the use of the site for parody/criticism was not
deemed relevant. Instead, the UDRP panels ruled that the domain name itself
must include some parodic/critical phrase to constitute "fair use" (i.e.
www.MattSandersonSucks.com <http://www.mattsandersonsucks.com/> could not be
wrested from a squatter, but
www.MattSanderson.com<http://www.mattsanderson.com/>could, even if the
website content says "Matt Sanderson sucks" on the
landing page). One panel even noted “Respondent’s [non-commercial
cybersquatting] is not the equivalent of exercising the right of free speech
outside Complainant’s business street address but of impermissibly blocking
traffic to that street address.” [Jenner & Block LLC v. Defaultdata.com,
Case No. FA0207000117310 (Nat’l Arb. F. 2002)].

Precedent isn't as valuable/binding in UDRP as it is in the courts, but
there's a stronger case to be made if she uses that route.

Matt Sanderson
Caplin & Drysdale, Chtd.

On Thu, May 12, 2011 at 5:03 PM, David Mason <dmason12 at gmail.com> wrote:

> The case is ancient, but see Planned Parenthood Federation of America, Inc.
> v. Bucci, 42 U.S.P.Q.2d 1930 (S.D.N.Y. 1997) holding against a site with a
> misleading name.
>
> On Thu, May 12, 2011 at 3:21 PM, Ben Sheffner <ben.sheffner at gmail.com>wrote:
>
>> Here's a link to the Koch Industries case to which Allison refers:
>> http://pubcit.typepad.com/files/kochindustries.pdf
>>
>> On a quick glance, the facts seem very similar to the fake Corwin site. In
>> the Koch case, the defendants created a fake press release and web site
>> purportedly announcing that Koch Industries had reversed its position on
>> climate change. The court dismissed Koch's claims for trademark/unfair
>> competition (no commercial use), violation of
>> the Anticybersquatting Consumer Protection Act (no "bad faith intent to
>> profit"), and the Computer Fraud and Abuse Act (no violation for allegedly
>> accessing Koch's public web site to gain info for use in the fake site). It
>> does not appear that the plaintiffs brought a copyright claim. My guess is
>> that the court would have rejected it on fair use grounds in any event;
>> there's a strong current of affording vigorous protection to political
>> speech that runs through the opinion.
>>
>> Additional info here:
>>
>> http://pubcit.typepad.com/clpblog/2011/05/federal-court-dismisses-koch-brothers-trademark-suit-over-climate-change-prank.html
>>  <http://pubcit.typepad.com/files/kochindustries.pdf>
>>
>>   On Thu, May 12, 2011 at 11:43 AM, Allison Hayward Gmail <
>> allisonhayward at gmail.com> wrote:
>>
>>>    Similar arguments failed in a case described here.<http://www.politico.com/news/stories/0511/54612.html>
>>>
>>>
>>>
>>> *From:* law-election-bounces at department-lists.uci.edu [mailto:
>>> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Rick Hasen
>>> *Sent:* Thursday, May 12, 2011 2:38 PM
>>> *To:* law-election at uci.edu
>>> *Subject:* [EL] Cybersquatting/Issa-Wertheimer
>>>
>>>
>>> Cybersquatting vs. Political Opposition/Parody
>>>
>>> I'm not sure if this is a question for Matt Sanderson<http://www.liebertonline.com/doi/abs/10.1089/elj.2008.0013?journalCode=elj>,
>>> Eugene Volokh <http://volokh.com/> or Ben Sheffner<http://copyrightsandcampaigns.blogspot.com/>
>>> .
>>>
>>> Check out what has got to be the funniest (and perhaps nastiest) parody
>>> site for a congressional campaign that I've seen, www.janecorwin.org(e.g., "Together we can make delicious soup from the bones of the poor. Sign
>>> up now to be served by Jane Corwin."). This site appears to be more than
>>> just an attempt to grab traffic from voters guessing at the name of Corwin's
>>> real site <http://janecorwin.com/>; it mimics the look and feel of that
>>> site and appears to me to be a political critique of Corwin's policies.
>>>
>>> So how do the rules on cybersquatting and copyright protection etc.
>>> interact with the First Amendment in this context? Would there be a First
>>> Amendment defense to a lawsuit brought by Corwin to move this to a
>>> differently-named site (or to shut down the portions that appear to steal
>>> some of the Corwin website's look and feel)?
>>>
>>> Posted by Rick Hasen at 11:37 AM<http://electionlawblog.org/archives/019475.html>
>>>  Issa Gags Wertheimer
>>>
>>> See here<http://thehill.com/blogs/blog-briefing-room/news/160763-democrats-slam-issa-for-rejecting-oversight-witness>
>>> .
>>>
>>> Posted by Rick Hasen at 10:42 AM<http://electionlawblog.org/archives/019474.html>
>>>
>>> --
>>> Rick Hasen
>>> Visiting Professor
>>> UC Irvine School of Law
>>> 401 E. Peltason Dr., Suite 1000
>>> Irvine, CA 92697-8000
>>> 949.824.3072 - office
>>> 949.824.0495 - fax
>>> rhasen at law.uci.edu
>>> http://law.uci.edu/faculty/page1_r_hasen.html
>>>
>>> William H. Hannon Distinguished Professor of Law
>>> Loyola Law School
>>> http://electionlawblog.org
>>>
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>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>
>>
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