Cybersquatting Double Standard

By: Vindictive | 18August2000

Right to Criticize The First Amendment to the US Constitution is supposed to guarantee that government can not interfere with any citizen's right to speak or to publish his/her opinions. This freedom to express and publish includes critical words to which some -- particularly the target of the criticism -- will take offense. The freedom to communicate non-offensive pleasantries wouldn't really need protection, would it? Every corporation, public person or politician (in free countries, at least) should be willing to endure criticism, whether that be in the form of gentle reproof and helpful suggestions or stinging attacks. Not only is criticism protected speech (in America), but -- having sought fortune, fame or office -- public persons and corporations ought to be willing to pay the whole price, including criticism. And yet, it seems that although government cannot limit a citizen's expression, those with money and political power sometimes do, using their vast resources. I intend to demonstrate that one of the most effective methods for employing the freedom to criticize is being successfully stifled by those who are the potential targets -- and our lawmakers are willing parties to this practice. Trademarks, briefly US Code, Title 15, Chapter 22 is the federal statute that defines Trademark law. Trademarks are distinctive symbols, words or pictures that companies use to identify the origin of their products. A registered trademark normally covers only a reasonably specific class of goods, so a person in a non-competing business isn't necessarily prevented from using the same word (especially if it is a common word) as a trademark. For example, although Apple Computers has a trademark on Apple, a footwear company would probably be able to safely trademark Apple Shoes. Besides the necessity of its owner continuing to use it, a trademark often has to be defended in court. If it loses its distinctiveness and becomes generic, it is dedicated to the public. Aspirin, Elevator and Zipper were once protected trademarks. Similar to copyright, trademark has 'fair use' provisions, where using another's mark is deemed to be 'fair' -- including for uses as parody when it appears in a traditional medium of protected non-commercial speech. Unlike patents and copyrights, the principle purpose behind the trademark law was -- until recently -- to protect consumers from confusion. Trademarks were not primarily designed to reward the intellectual property owner with an exclusive right to exploit their creations. They were designed to protect you from accidentally buying a computer made by Incredibly Boorish Manufacturers on the basis of an IBM sticker on the case. This distinction -- that trademarks are supposed to protect consumers -- is important when considering cybersquatting a.k.a. cyberpiracy and new laws that cover it. Cyberpiracy Before the Trademark Cyberpiracy Prevention Act (a.k.a. the Anticybersquatting Consumer Protection Act) was signed into law by President Clinton on 29Nov1999, a common method corporations used to keep citizen critics and parodists from annoying them was the SLAPP -- Strategic Lawsuit Against Public Participation. SLAPP suits are brought against advocacy and other public interest groups or citizens who are opposed to a corporate project or vested interest. They are effective because most private citizens and small groups don't have the resources to defend themselves in court against corporate-sponsored legal action. In other words, they can't afford justice. SLAPP suits are might-makes-right unethical and they leave common citizens powerless. In most places, they are also perfectly legal. "Please close this Web page immediately and relinquish your registration of the walmartsucks.com domain name within two days of receipt of this letter. I further require your written assurances that you will engage in no similar activity disparaging Wal-Mart." -- From the Cease & Desist letter to walmartsucks.com The Trademark Cyberpiracy Prevention Act was supposed to prevent trademark infringement and dilution in the Internet domain name space by making domain name holders legally liable in civil actions brought by trademark holders sharing the same name or one that is "confusingly similar." What the Act really does is give trademark holders more rights than they previously enjoyed. (Remember, the purpose of trademarks was to protect consumers, not businesses.) Under the new law, domain name holders can be liable for 'tarnishing' or 'disparaging' a trademark. The concepts of tarnishment and disparagement were unique to a minority of trademarks that qualified as 'famous marks', but this Act expands it to include all trademarks. Before the Trademark Cyberpiracy Prevention Act, if a domain name holder had not yet established a site with his/her domain, s/he was free to sell it for whatever the market would bear. After the Act, if s/he offers to sell it, s/he can be liable -- even if the offer is made in order to avoid being sued. As a result of this Act, domain name holders who use their site to engage in criticism, parody or satire are at risk of having the domain name taken away and also having to compensate the trademark holders who are the brunt of their criticisms. This Act allows courts to award damages of as much as $100,000 per domain name registration, even if there is no proof of lost profits or actual harm. If a domain name holder wants to protect his/her interests, s/he has to file the lawsuit, affirmatively demonstrate good faith, and prove s/he is innocent of trademark piracy -- this in a nation that used to assume a citizen was innocent until proven otherwise. How did this happen? Investment behemoth Leonardo Finance is suing 30-year-old art magazine Leonardo to prevent it from using its name. ICANN (Internet Corporation for Assigned Names and Numbers), an international non-profit group, had been working hard to create consensus on balancing the needs of trademark holders and domain name holders. They had been crafting a dispute resolution procedure to take care of all this. But as usual, thick-thumbed politicians who -- at best -- didn't understand what they were doing, got a wild hair up their collective asses. They saw the situation as an opportunity to make more laws to swing rights away from private citizens and towards corporate interests. How could they ignore that kind of opportunity? In case you haven't figured out the political realities yet, once a politician is in office, his/her primary objective is to remain in office. In order to do this, s/he must acquire money for reelection campaigns from special interests. Although there are some special interest groups composed of private citizens, influence is determined by the depth of the pockets. Corporate special interests generally have more money than groups of concerned citizens, and can therefore afford more influence. To a rational person, cybersquatting -- regardless of your opinion of whether it's 'bad' or just good business -- would include the practice of one person or company registering hundreds of ordinary words as domain names. So why would it now be considered inappropriate and legally actionable for me to hoard domains which may or may not contain alleged trademarks, but quite all right for huge corporations like Procter & Gamble to grab hundreds of domain names representing ordinary words? Carrots.com, underarm.com, diarrhea.com, toiletpaper.com, beautiful.com badbreath.com, headache.com, pimples.com all belong to P&G. The answer seems obvious: P&G buys more influence than I can afford. InterNIC Screwed Up From the ®tmark campaign in support of Leonardo. Cybersquatting wouldn't be such an issue if InterNIC (now Network Solutions) had done their job right in the first place. When the WWW was still a young component of the Internet and InterNIC was a monopoly, the Top Level Domains (TLDs) dot-com, dot-org and dot-net were distributed according to a set of guidelines: dot-com was for commercial business, dot-net was for network related organizations like Internet Service Providers, and dot-org was for non-profit organizations. At first, InterNIC manually processed requests for domains, verifying that the requester represented the appropriate type of organization. But as the Web became more popular, they didn't (or couldn't) keep up -- even after they started charging money for the domains. Eventually, they gave up altogether. Any kind of organization could (and often does) own all three versions of whatever name they can get their hands on. An individual might have the rights to hisname.com while companies compete with ISPs and non-profits for dot-net and dot-org. Because InterNIC didn't do what they were charging for, a great opportunity was missed and -- as a result -- injustices have occurred. Consider Virtual Works. In 1995, Volkswagen acquired vw.com -- the dot-com indicating that they were in a non-networking business. They left vw.net alone, since that wouldn't appropriately belong to them. In 1996, Virtual Works -- a small Internet Service Provider -- acquired the domain vw.net. Web users at the time wouldn't have confused vw.net with vw.com; obviously they were different types of businesses. After Network Solutions started handing out domains without regard to any sane TLD guidelines, they took vw.net away from the ISP and handed it over to Volkswagen. Since there was no longer a way to tell from the TLD that vw.net might not be Volkswagen, the judge decided that the 1996 Trademark Dilution Act (another brainiac piece of legislation) applied, whereby a company can stop another party from using a trademark, even if that other party is not in the same business. Virtual Works was up the creek. Another example of the madness caused by InterNIC's incompetence was the case involving PETA -- People for the Ethical Treatment of Animals. Although they are a non-profit, they occupied peta-dot-com. Since peta-dot-org was available, a meat-eater and satirist took it and set up a parody site, People Eating Tasty Animals. PETA sued and the judge -- unfamiliar with the concept of freedom of expression -- decided that PETA ought to have both domains. Domains as a Method of Expression Even more deleterious for the cause of freedom was the loss of dot-orgs to corporate America. Before, small non-profits (including you and I) didn't have to compete with businesses for worthwhile domain names. That right has now disappeared, and you can blame Network Solutions or -- more accurately -- blame the government that gave them the monopoly on a service they weren't willing or able to perform properly. nogore.com In most cases, judges have ruled in favor of corporations or organizations (probably in exchange for political support) and against the original domain holder who appeared to be using the domain to make statements critical of the corporation. If a person can prove that the web site in question doesn't fool a surfer into thinking it is a company site when it isn't, and if it is being employed as a vehicle for expression, s/he might have a shot at being able to keep it. But as with SLAPP suits, it usually boils down to the fact that private citizens can't throw the kind of money at attorneys that corporations can. However, if a person doesn't want to fight corporate America over domain names that also happen to be trademarks, s/he should still be able to use a derivative of a trademark (bellatlanticsucks.com for example) for a site that does parody, complaints or other First Amendment-protected criticism. One successful example of a parody site is gwbush.com. About this web site, Dubya uttered his famous words, "There ought to be limits to freedom". (Consider that a foreshadow of policy during the upcoming Bush administration.) Legitimate Use of Domains For the sake of argument, let's make some assumptions about cyberlaw as it currently stands, apply simple logic, and see where it takes us. Most of us can probably agree that there is value in protecting trademarks and that people using the Web shouldn't be confused into thinking they've accessed an official company web site if they haven't. Even if we don't necessarily all believe it, most of us can probably understand the argument that domain names should generally be available to those who will make legitimate use of them and that those who won't shouldn't hang onto them just for the purposes of keeing a legitimate user from them. Therefore, given the principles of free expression, negative derivatives of corporate names -- verizonsucks.com for example -- should be available for those who would use them to air their complaints or criticisms. Shouldn't they? Yes, but in many cases, they aren't. Many of these domains names are not available for those who would use them as vehicles for free speech. Many have been registered by the companies or individuals they would obviously be used against. Shouldn't an unsatisfied customer of, or unhappy worker at, Verizon Communications -- the new telecommunications giant formed by Bell Atlantic and GTE -- be able to register verizonsucks dot-com, dot-net or dot-org or some similar domain to use for the airing of complaints and criticisms? All three domains are registered to Bell Atlantic Trademark Services LLC. Also registered to Bell Atlantic verizon-blows.org verizon-blows.net verizon-blows.com verizon-bites.org verizon-bites.net verizon-bites.com verizonblows.org verizonblows.net verizonblows.com verizonbites.org verizonbites.net verizonbites.com verizon-wireless-sucks.org verizon-wireless-sucks.net verizon-wireless-sucks.com verizon-wireless-blows.org verizon-wireless-blows.net verizon-wireless-blows.com verizon-wireless-bites.org verizon-wireless-bites.net verizon-wireless-bites.com verizon-stinks.org verizon-stinks.net verizon-stinks.com verizon-shits.org verizon-shits.net verizon-shits.com Verizon is a lot more worried about their ability to satisfy customers than their commercials would lead one to believe. Bear that in mind when you go shopping for wireless services. When 2600 Magazine's Emmanuel Goldstein registered verizonreallysucks.com, he got a threatening letter from a Verizon attorney who demanded that Goldstein turn the domain over to them, claiming that some poor surfer might think verisonreallysucks was the official Verizon web site. 2600.com's own page about the incident reads: "This corporate abuse makes it quite clear how such laws turn into an open invitation to trample on the rights of individuals. When written, this law was designed to protect companies against those who would register their name and hold it for ransom. But [verizonreallysucks.com] is a statement, an OPINION, one which in no way would be confused with the actual name of the company." Unfortunately for Verizon, 2600 Magazine isn't some little outfit with limited resources that has to curl up and play dead at the first cease-and-desist email. Imagine what would happen if you were threatened with legal action by a corporation for exercising your right to criticize. Would you be able to afford freedom of expression under similar circumstances? Verizon Communications lives in a world where free expression is threatening and must be dealt with -- not by resolving customer or workplace issues -- but by shooting corporate attorneys at critics like Clinton's missiles at a pharmaceutical factory. Procter & Gamble, the makers of a new product Febreze that neutralizes pet odors, is apparently so afraid of the side-effects of Febreze, they have already registered febrezekillspets.com, febrezekillsdogs.com, febrezekillsbirds.com, febrezesucks.com and ihateprocterandgamble.com in self-defense. If you own a pet, it might be important for you to know that they are expecting these types of consumer complaints. The presidential campaign and aides of George W. Bush have registered 260 bush-related domains, including bushsucks, bushsux, bushblows and bushbites in all the dot-com, dot-net and dot-org versions. These domains all redirect to the official Bush web site. Dubya lives in a world where, not only "there ought to be limits to freedom", but critical expression is a threat. This is the Internet (and moral) equivalent of a local politician buying all the newspapers in town, in an attempt to control what's printed. Is it a legitimate use of domain names to tie them up so others can't use them, or to redirect browsers from critically-worded web addresses to the site of their potential targets? Is stifling criticism a legitimate reason to register a domain? Yes, if First Amendment protections are a farce and the possibility that some company or politician will be embarrassed is more important than the freedom to criticise. Of course (some will say), there are plenty of variations of names still available for the critic or satirist to register if they exercise a little imagination. Unfortunately for most of us, corporations like Verizon are willing to threaten anybody with lawsuits who dare to 'threaten' them with criticism. The corporate state doesn't like free expression and they can make it very uncomfortable for anybody who exercises it. The Cybersquatting Double Standard Regardless of whether it is P&G registering any-generic-product.com and any-physical-condition.org or politicians taking over every possible they-think-I'm-a-bastard.net, it is all cybersquatting, pure and simple. The same logic that damn near disallows anybody who happens to share a last name with that of a corporation from registering his own domain should also ensure that these sucks and blows domain names are not under the control of the powers they could be used against. If cyberpiracy is bad, reserving obviously critical domain names for critics would only be just. So, why isn't this other kind of cyberpiracy addressed in the Cyberpiracy Act? Obviously there is a double standard. Cybersquatting is condoned on a corporate level -- even to hush criticism -- but disallowed at the private citizen's level. If you have the resources, you must buy your justice in the same small brown package that your politician and judge comes in. At best, our elected officials cluelessly thrash about that proverbial China shop, unaware of the implications of what they are really doing or for whom they are really doing it. At worst (and more likely) they understand precisely what they are accomplishing -- actively sucking up to the powerful interests who fund their reelection committees. In a civil democratic society, it would be more important to have a critical web site at bushsux.org than to have an official georgebush.com, or to have access to a critic's opinions (right or wrong) at febrezekillspets.com than one more sweetness and light corporate web site like Procter & Gamble's febreze.com. At this point, the only way out of this mess will be new Top Level Domains dedicated to parody and critique -- suffixes such as .sux or .screwed. There is no technical reason why an infinite number of these couldn't be made available in short order. If this happens and if your elected officials are looking out for your best interests as a consumer and (more importantly) citizen with First Amendment rights, they will make sure that corporations are not allowed to buy these up also. Given how dot-com, dot-net and dot-org were all thrown together into the same corporate-controlled pool, I wouldn't hold my breath. But who are the real culprits, corporations or government? Let's see...in exchange for large donations, elected officials grant corporations more rights and better tax breaks than citizens have, which gives corporations more power and resources with which to buy elected officials. Fortunately, both chickens and their eggs will make pretty good eating when mealtime finally rolls around. Also see... Can Dish it Out; Can't Take It -- What PETA gets, and doesn't, about parody 1st Amendment, 2nd Commandment and Textile Worship

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