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]
Mark N. says:
Unfortunately, the precedent on this isn’t encouraging, with respect to the WIPO procedures, so they might well prevail. The trademark-law claims under U.S. law against “SomethingSucks.com” kinds of sites have always been dismissed, as far as I know; here’s some solid 6th-circuit precedent on the subject, for example. But the WIPO has ruled in favor of Guinness, Air France, and Wal-Mart in similar disputes. On the other hand, CompUSA lost its WIPO case against stopcompusa.com.
[Pp. 127–135 of this book has a decent summary of the development and rather poor state of this area of supranational administrative law, from which I grabbed some of those examples. The trend appears to be getting worse, as most of the victories for “-sucks” sites were around 1999–2000.]
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October 20, 2009, 3:49 pmrj says:
I hate those guys! My original idea was to use aftexposed.com to sell half-nudist cruises on which the back of the ship would be clothing-optional.
Do I have standing here?
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October 20, 2009, 4:13 pmCrunchy Frog says:
Congratulations, AFT. I had never heard of AFTExposed.com, but following your ham-handed tactics (reason #4237 on why people hate lawyers) I’m going to go there and donate.
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October 20, 2009, 4:24 pmPeteP says:
Let us hope that some of the fine legal beagle regulars here contact them, and make SURE they are well represented ( pro bono as needed ), to protect free speech !!!
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October 20, 2009, 4:25 pmbpbatista says:
Hmmm ... a union acting stupidly (where have I heard that phrase before?) and thuggishly. What a shocker.
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October 20, 2009, 4:41 pmJeffH says:
Looks like Clark Neily at IJ has written to AFT in reply. I don’t think AFT is likely to have much success with their bullying.
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October 20, 2009, 4:42 pmanonymous says:
the LDS church would have shut down exmormon.org if the was a legal basis to do so, and they have a lot more money than the AFT.
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October 20, 2009, 4:46 pmJoseph Slater says:
Independent of the IP issue, which I’m not qualified to comment on, I always marvel at the slathering knee-jerk hatred some posters here have for groups of workers who try to improve their working lives by forming unions.
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October 20, 2009, 5:19 pmTFN says:
There’s a ninth circuit case called Bosley Medical Center that seems to be directly on point. That case holds (and I’m going from memory here) that a website criticizing the medical center was not a “commercial use” under the Lanham Act or the Cybersquatting Act.
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October 20, 2009, 5:42 pmBob from Ohio says:
Don’t you think its the union itself and its officers that are “hated”?
How many senior officals at AFT have ever been teachers, or if they were, how long has it been? How many SEIU officers or organizers change linens at hotels? Is the AFT’s General Counsel a “worker” as you use that term?
When unions engage in political activity, they are going to get opposition. The SEIU and the teacher unions are major, major players in the Democratic Party. Look at how many union officials were delegates to the last convention.
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October 20, 2009, 5:44 pmBored Lawyer says:
Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161 (C.D. Cal. 1998) is one of the leading cases. (“Ballysucks” held not infringing)
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October 20, 2009, 5:47 pmJoseph Slater says:
Bob:
I think some libertarians and right-wingers reflexively hate “unions” and that attempts to say, “oh, they only hate the LEADERSHIP” are often (not always, but often) false. Who votes in the leaders? Who votes to be members of unions? Ordinary working class folks, or in this case, teachers.
Re the AFT, union officers at the local and state level have almost always spent a decent chunk of their careers as actual classsroom teachers. Same is often true for SEIU *officers* at the state and local level, although not as often for SEIU *organizers.*
It is a trope of both the far right and far left that union leaders somehow never really represent interests of the actual members. In some cases, that’s been true, I’ll grant you, but I’ve worked with unions for decades, and I think more often than not, union leaders DO represent their members, at re job-related issues.
You are correct that SEIU and teachers’ unions are major players in the Democratic party. That explains a lot of the antipathy by many right-wingers and/or Republicans to unions. Of course there is a chicken-and-egg question: the Republican party has been pretty anti-union, and that reached an all-time extreme level under G.W. Bush.
Anyway, I don’t want to hijack the thread to be about whether unions are Good or Bad. David Post was careful to separate his views on the IP issue — which this thread should be about — from his views on unions. I wish the commenters had done the same, but I’ll let this be my last word.
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October 20, 2009, 6:41 pmRowerinVA says:
Joseph Slater, neither of your posts makes sense.
As to the first, I don’t see any “slathering knee-jerk hatred” of unions in the posts on this string. I’m not sure really what you mean (slathering?) but there isn’t evidence of hatred of working people, or even unions in general. If your point is about the entire VC blog, you’re on even weaker ground, as it’s classic little-guy plaintiffs such as those in Heller and Kelo whom this blog’s authors tend to support against powerful moneyed interests.
As to the second post, re “who votes in” the union leaders, it proves way too much. The little guys voted in Obama. We can’t criticize him? The little guys voted in Bush 43 (even you would concede the 2004 election, right?), and Reagan, and everyone else in the US government past and present. We can’t criticize Bush and Reagan? Remember, the moneyed blue state coastal elites are opposed to the Republicans (see the Goldman Sachs donation records). Anger at the red state “working man” is, in fact, a recent Democrat obsession — see the book, “What’s the Matter with Kansas?”
The point made by the left recently, and everyone over time — with respect to unions and politicians alike — is that for various public choice reasons the “leaders” can bad for their constituents. In addition, the point made about the teacher’s unions is that the unions are typically good for the average and poor teachers, and bad for the exceptional teachers and most students, and that “improving the working lives” of some teachers is not worth the cost of destroying working lives of others, or the educational lives of the far greater number of students.
I think you know this. How could you not? And if you do know this, why are you hurling “slathering” invective instead of engaging on the issues?
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October 20, 2009, 7:16 pmSplunge says:
I think some libertarians and right-wingers reflexively hate “unions”
No, I suspect it’s the other way around. One often becomes a “right-winger” or “libertarian” (to use your terms) because of a sustained nasty experience with certain unions.
Particularly teacher unions. At my daughter’s high school less than one half of the employees are actually teaching in a classroom on a daily basis, the average hourly wage is $45 (roughly double the US median, with astoundingly generous benefits and infinite job security) — while the science textbooks are over a decade old and the teacher who through seniority has the right of first refusal to teach AP US History spends his classroom hours telling amusing (to him) anecdotes of how he burned his draft card in ’71, so that she has to prepare for the AP exam at home, using books I purchase from the bookstore.
I have no problem with teachers who provide a valuable service being paid well for their efforts. But that is not the goal of the teachers’ unions, at all.
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October 20, 2009, 7:19 pmMalvolio says:
I’m curious. The letter from the GC seems (to me) to be wholly dishonest. Is there no penalty attached to sending a threatening letter that you know has no sound basis? The parents of the Balloon Boy are in big trouble because they told police their kid was up in a balloon when they (allegedly) knew he was not; why isn’t this lawyer in similar trouble for making similarly false claims?
That would be pretty much the opposite of the unions’ goal.
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October 20, 2009, 8:03 pmtraveler496 says:
I’ll see your frustration and double it, rj. My prospective half-nudist cruise concept struck a rather more enlightened balance between passenger freedom and decorum (the clothing optionality would have applied not at the back of the ship, but to the backs of the passengers).
This visionary venture failed for — it still galls me — lack of sufficient backing.
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October 20, 2009, 10:05 pmKirk Parker says:
And this has what relation, exactly, to their non-job-related political excursions?
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October 20, 2009, 10:41 pmFormer Chicagoan says:
I always marvel at the slathering knee-jerk hatred some posters here have for groups of workers who try to improve their working lives by forming unions.
Maybe because they use extortion to get more compensation than they deserve and bankrupt companies like GM? Soon we’ll hear of cities and states filing bankruptcy because police and firemen retiring at 50 with $100,000 a year pensions.
We need a movement to forbid unions for government employees. It’s not like the government is greedy capitalists.
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October 20, 2009, 11:00 pmJorgXMcKie says:
As one who is forced to pay AFT dues, I have something less than slathering (??) knee-jerk hatred for my union. A deeply held, fact– and experience-driven bone-deep loathing, perhaps. Tell me, Bob, how many years experience and dollars in dues paying with this bunch of scum-suckers do you have?
If you want to see what is wrong with both Detroit public schools and the economy and budget of the State of Michigan, just look reasonably closely at the AFT.
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October 20, 2009, 11:40 pm“Domain bullying” says:
[...] David Post at Volokh, a nastygram sent by the American Federation of Teachers to the critical site [...]
Lightcon says:
Too bad dAFT.com is already taken.
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October 21, 2009, 6:21 amDotar Sojat says:
Maybe we just like secret ballots.
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October 21, 2009, 11:32 amPersonFromPorlock says:
Splunge:
Bear in mind that the teachers’ unions do support merit pay so long as everyone gets it.
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October 21, 2009, 4:54 pmJoan in Juneau says:
To me it seems clear that AFTExposed is not affiliated with AFT and does not confuse at all. I know we are talking internet issues here but is there a case if it is transferred to confusion in print media, are the laws the same for both?
Palin is set to release her book soon and it appears that the left is releasing one of the same title the following day. To me, this one truly appears as an attempt to confuse. Your thoughts?
See article and book covers here: http://tinyurl.com/ykgkucl
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October 21, 2009, 6:54 pmRon Coleman says:
Looks like the AFT has backed down.
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October 21, 2009, 10:10 pmTrademark Claims: The Option Of Choice For Censoring Critics | The-Informer says:
[...] Michael Scott, we learn about how the American Federation of Teachers (AFT) tried to shut down a blog critical of the group using a trademark claim. While the AFT eventually backed down, after pretty much everyone made it [...]
Noel McLeod says:
Commenting on the AFTexposed website, which I would never have seen if the AFT weren’t complete idiots, here is an observation:
For every social action there will be an opposite social reaction.
The abuse of power that the Teacher’s Unions (as a Canadian I write from a Canadian perspective; I had always thought things were better in the “land of the free” but I guess not) has led to an INSANE CBA that in Canada values a teachers skills, education and time at about a 40% premium over other equally educated professionals. Along with a number of intangible but extremely valuable perks (for example, virtually guaranteed lifetime employment!).
This is a massive social shift from the mid-seventies when teachers WERE undervalued and underpaid and HAD legitimate complaints; now they are massively overpaid to the extent that their overcompensation is creating social upheaval.
The social reaction: here in Canada during the last labor action by the teachers striking teachers were subjected to ridicule and violence from parents and the general public. Private schools, home-schooling and “online” education are rising rapidly.
So take heart, they are going to get what’s coming to them. Send your kids to an online school, or a privare school if you can afford t.
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October 29, 2009, 11:13 amLinks 29/10/2009: Ubuntu 9.10 Released, Android Momentum Noted, 100,000,000 Downloads of OpenOffice.org 3.0 | Boycott Novell says:
[...] 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.”). [...]
Roy Schestowitz (schestowitz) 's status on Friday, 30-Oct-09 07:53:17 UTC - Identi.ca says:
[...] American Federation of Teachers Bullies Critics Using #IntellectualMonopolies http://volokh.com/2009/10/20/domain-bullying/ [...]