Domain Bullying

A posting over on the Big Government blog details recent attempts by the American Federation of Teachers (AFT) to shut down the website at AFTExposed.com (which, as you might guess from the name, doesn’t have very nice things to say about the AFT). The AFT’s General Counsel has sent the operators of the offending website a cease-and-desist letter, demanding “immediate cessation of use of the domain AFTexposed.com or any other variant that includes the acronym AFT.” The asserted grounds: (a) trademark infringement (that use of the AFT acronym is “likely to cause confusion, or to cause mistake, or to deceive”), and (b) violation of ICANN’s Uniform Dispute Resolution Policy (on the grounds that the AFTexposed.com name is “confusingly similar” to AFT’s trademark and was “registered in bad faith.”).

It’s pretty much pure unadulterated nonsense, little more than an attempt by the AFT to silence a critical voice, and I hope that the AFTExposed.com folks don’t cave in to the pressure. The trademark claim is very, very weak; consumers are pretty stupid sometimes, but they are not nearly stupid enough to be confused into thinking that a site called “AFTexposed,” which has as it’s tagline prominently displayed at the top of the site “The website the AFT doesn’t want you to see,” is somehow affiliated with the AFT. [There have been a few cases that would appear to be contrary, but they involved website names that were identical to the trademark — PETA.org, for instance, or PlannedParenthood.com; in those cases courts held that there was a likelihood of confusion because the domain name itself would be taken by a reasonable consumer to represent the “official” site. Not the case here.] Plus, there is a well-known defense in trademark law for so-called “nominative use” — the use of a trademark to identify the trademark owner. I can’t talk about the Microsoft Corporation without using the trademark “Microsoft,” I can’t talk about the Ford Motor Company without using its trademark, and I can’t talk about the AFT without using its trademark, and courts have recognized that such uses must be permitted less the trademark holders be granted complete control over the ability to comment on a company’s policies or products.

Finally, the assertion that this violated ICANN’s UDRP is flawed as well. The requirement that a domain name be registered or used “in bad faith” before a violation can be found does not cover registration for the purpose of criticism — it was meant to disallow registrations where, in the words of the UDRP itself, there are

“circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or to a competitor of that complainant,” or the registration was undertaken

“to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name,” or the domain name registrant

“intentionally attempted to attract, for commercial gain, Internet users to its web site . . . by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site . . . ”

There doesn’t seem to be the slightest chance that the AFT could prove any of these conditions.

Let me add that my distaste for the AFT (which runs pretty deep) does not really drive my conclusion that they’re just blowing their trumpets here. They’re not the first, nor will they be the last, organization to engage in this kind of domain name bullying; the good folks at chillingeffects.org have been documenting dozens and dozens of cases just like this for years. But that doesn’t make it any more palatable.

[Thanks to Todd Kellert for the link]

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