I regret to say that my very own University of California is — in my view mistakenly — trying to legally pressure the site thedarksideofucsb.com to change its Web address. According to this Pacific Business Times article (the substance of which I’ve generally verified myself),
On Nov. 10, [the site operator] got an e-mail from Meta Clow, UCSB’s policy and records management coordinator, asking him to “immediately remove our initials from your Web site designation.”
Clow said Baron was in violation of California Education Code Section 92000, which designates the “University of California” name and all abbreviations, like UCSB, as property of the state. “Anyone violating this provision,” Clow pointed out, “is guilty of a misdemeanor.”
I talked to someone at the UC about this, and they say they aren’t going after the guy because he’s critical of UCSB. (I express no opinion on the merits of the criticisms, by the way.) Rather, they say they generally go after people who use UC in their site names, whatever the site’s views — my sense is that UC is chiefly trying to protect its profits from merchandising of UC-related paraphernelia. And the statute might indeed be read to cover the Dark Side of UCSB site:
(a) The name “University of California” is the property of the state. No person shall, without the permission of the Regents of the University of California, use this name, or any abbreviation of it or any name of which these words are a part, in any of the following ways:
(1) To designate any business, social, political, religious, or other organization, including, but not limited to, any corporation, firm, partnership, association, group, activity, or enterprise.
(2) To imply, indicate or otherwise suggest that any such organization, or any product or service of such organization is connected or affiliated with, or is endorsed, favored, or supported by, or is opposed by the University of California.
(3) To display, advertise, or announce this name publicly at, or in connection with, any meeting, assembly, or demonstration, or any propaganda, advertising, or promotional activity of any kind which has for its purpose or any part of its purpose the support,
endorsement, advancement, opposition, or defeat of any strike, lockout, or boycott or of any political, religious, sociological, or economic movement, activity, or program.(b) Nothing in this section shall interfere with or restrict the right of any person to make a true and accurate statement of his or her present or former relationship or connection with, his or her employment by, or his or her enrollment in, the University of
California in the course of stating his or her experience or qualifications for any academic, governmental, business, or professional credit or enrollment, or in connection with any academic, governmental, professional, or other employment whatsoever.(c) Every person violating the provisions of this section is guilty of a misdemeanor.
Nonetheless, as applied to this site, the statute pretty clearly violates the First Amendment. The site is engaged in fully protected speech, not commercial advertising or nonspeech conduct. It doesn’t falsely suggest that it’s affiliated with UCSB or endorsed by UCSB. It doesn’t compete with UCSB for sales of UCSB-licensed products. The site name is constitutionally protected, just as a book called “The Dark Side of UCSB” (even if it’s “propaganda” for a “political” or “sociological” “activity”) would be protected. See generally Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003), which held that a “sucks” domain didn’t violate federal trademark law, but which also stressed that such site names are protected by the First Amendment:
We find that Mishkoff’s use of Taubman’s mark in the domain name “taubmansucks.com” is purely an exhibition of Free Speech . . . . And although economic damage might be an intended effect of Mishkoff’s expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act.
In fact, Taubman concedes that Mishkoff is “free to shout ‘Taubman Sucks!’ from the rooftops….” Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.
See also Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161, 1166-67 (C.D. Cal. 1998); Bosley Medical Institute v. Kremer, 2004 WL 964163 (S.D. Cal. 2004).
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