I’d like to start my first post by thanking Jared Beckerman and the editors of JTLP for having me here as a guest blogger. It is a pleasure and an honor to be here and I’d like to congratulate the journal editors on getting the blog up and running. Hopefully it will generate some very interesting debates in months and years to come.
How better to start a guest blog post than with one of my favorite topics – Internet domain name disputes. I was interested to see an article in the NY Times last week raising the question of political cybersquatting and other uses of politicians’ names in the domain space. This issue has been around for a while, but it doesn’t seem like there’s any clearer guidelines developing than ever there were.
While presidential campaigns have clearly recognized the importance of securing domain names like barackobama.com, at least in more recent years, politicians in smaller campaigns have not always been aware of the importance of doing so. The NY Times article gives a number of examples of congressional and senatorial candidates who have not been quick enough to secure FullName.com and other versions of their names in the domain space. This leaves it open to others – often opposing candidates or parties – to register those names and post comments critical of the relevant politician. It’s also open to cybersquatters to register those names and seek to make money from selling them to the relevant politician or to a competing candidate.
While “trademark.com” domain names have, over the last decade or more, been successfully protected at least against bad faith cybersquatting through the online dispute resolution mechanism of the UDRP and various domestic trademark laws, political domain names generally are a bad match for this regulatory system. Current domain name regulations focus on the complainant establishing a trademark that corresponds with the relevant domain name and a bad faith motive (usually linked in some way to a commercial profit) on the part of the domain name registrant. This system is a poor fit for political domain name disputes because often a politician cannot establish a trademark in his or her personal name and, even if (s)he can, where the domain name registrant is merely using the name for expressive non-commercial purposes (eg to criticize the politician in question), the complainant is unlikely to be successful in seeking cancellation of the registration or transfer of the domain name.
This may well be as it should be. There are good arguments why free speech in the political context should be preserved on the Internet. Thus, if opposing candidates have registered a politician’s name in the domain space to criticize him or her, that should be fair game. Where the registrant is seeking to make money from the registration (eg traditional cybersquatting), the question is more difficult because arguably an important political resource is being wasted in the name of commercial profit. However, in the absence of a trademark in the name, a politician is unlikely to prevail even against a cybersquatter. Perhaps the UDRP should be revised to preclude registering a person’s name with a commercial profit motive. However, that proposal has been made before and has not come to fruition so far. The next few electoral cycles may provide interesting evidence about the way in which political domain names are being used, and the potential need for future regulatory reform.
Professor Jacqueline Lipton, Associate Dean for Research and Faculty Development; Co-Director, Center for Law, Technology, and the Arts, Case Western Reserve University School of Law