Hell hath no fury like a politician cybersquatted.
Accusations of identity theft, cybersquatting, unfair competition, and violations of legal rules of ethics are all flying at me. This is what you can expect when you register a domain with a politician’s name in it. But don’t despair. There’s hope, and the law is really on our side.
Most SEO folks remember the early days of cybersquatting, when people would register domain names of famous trademarks and the companies would get mad and sue. That died down for a while. The issue is reviving in two ways, with legal implications.
First, there’s the fact that some domain owners let their registrations lapse. The expired domain names then become available in auctions, such as on GoDaddy. While the vast majority have little value, some are worth something. Typically for the ones with value, the original domain name owner built a website and then let it lapse due to disinterest, inattention, or just plain mistake.
Second, the earlier practice of registering a trademarked domain name has transmogrified into registering the names of people, often involving politicians. One of the more famous examples is georgewbush.org. At the national level this has been going on for a while, but it is now growing rapidly at the local level as well.
How I got into this
I happen to be a local politician, a lawyer, and I dabble in SEO. I was elected to my town board in 2007. During the campaign I created a website about our town and built pages about the incumbents we ran against. My pages about them ranked #1 on Google searches. I’d brag that this was due to my tremendous SEO skills, but the real reason is that they didn’t have their own web pages and there were no pages about them.
Once we got elected we discovered the town supervisor (it’s a little like a mayor) was not going to work with us. As he got worse and worse, I’d had enough. Recently I registered his name as a domain name and built a website about him. Now, this may surprise you, but …
He really didn’t like that. Really, really, really, really!!
He went into a rage, accusing me of identity theft, cybersquatting, and a whole bunch of other things. Since he accused me of being a pedophile some months earlier, the latest accusations were kind of a positive step. Before you feel for him as a victim, keep in mind that he’d created a few nasty websites about me a year earlier – and he’s a lawyer too. My website about him is mostly pages with links to, or videos of, him saying one thing in one place and the opposite in another. No name-calling. Just the facts, Ma’am.
He’s spent quite a bit of time lately creating websites with his name in the URL – at least ten of them, all with pretty much the same content. We all know that’s not good for SEO. Meanwhile, he complained about my site to the newspapers, thereby inducing some high quality links to my site. But I digress …
Around the same time I noticed that the domain names for a couple of local 2008 congressional candidates were about to expire. The two had their own cybersquatting spat a year earlier, so they should have known better. I acquired their domain names in GoDaddy auctions, and rebuilt them as “legacy campaign websites.” The sites mostly serve as a history of their campaign (maintaining their most important URLs, of course). In the long run I expect them to run for office again and these websites will give me a voice in those elections.
The “victim” of their earlier cybersquatting dispute sent me a letter. He’s not just a lawyer. He’s an Ivy League educated trial lawyer in a prominent law firm that brags about being 200 years old (the firm, not the lawyer – he’s not Methuselah). As you can imagine, his letter was a little scary. But a little analysis calmed me down.
The Legal Issues
Here’s the key paragraph in the lawyer’s letter:
The use of another attorney’s name in a website in an effort to promote your own law business is a violation of the federal Lanham Act, state unfair competition law, and legal rules of ethics. You have exceeded the bounds of First Amendment protection.
Let’s go through the specific legal issues, one at a time.
1. The Lanham Act and Cybersquatting
Per Wikipedia, the Lanham Act is mainly about trademarks and false advertising. In 1999 they added the Anticybersquatting Consumer Protection Act (15 US Code 1125(d)). In the Code itself it’s called “Cyberpiracy prevention.” Some day I’d love to get 15 minutes to interrogate Nancy Pelosi and Newt Gingrich to see if either of them has any idea what this law says.
If you registered the domain name with a “bad faith intent to profit,” then that just might violate the law. It’s not a crime, but you can be sued. One key thing to be aware of is §1125(d)(1)(B)(i)(IV). If your use of the domain name is “bona fide noncommercial or fair use,” that will help a lot. If you just put up a page that says “this site for sale,” or one that redirects to your site where you sell something related to the name or trademark, that suggests you’re trying to profit off of that name. But under the fair use concept, if you put up site or at least a page that talks about something meaningful, then you should be in better shape. In my situation, since the individuals are elected officials and/or candidates for office, my political speech rights should carry more weight than just about anything. It also helps that I’m clearly not profiting from the sites (and I’m not trying to, either).
I did a quick search on my Lexis account. There are 255 reported cases involving cybersquatting in the past 5 years. That’s more than I expected. Keep in mind there are plenty of cases that do not get reported because they are settled or dropped. One really good case involves a quirky battle between the Mormon Church and one of its critics: Utah Lighthouse Ministry v. Fair. It’s good reading if you want to get into the finer legal analysis.
One last thing to be aware of is statutory damages. The Lanham Act says that if you lose, the judge can make you pay anywhere from $1000 to $100,000 per domain name. So be sure not to engage in cybersquatting if you have a bad faith intent to profit.
2. State Fair Competition Laws
In some of the federal cases I saw, the lawsuit also involved claims under state law. Many states have similar laws about the use of domains. Here in New York, it’s under General Business Law § 148(1). You’re in trouble if you have a specific intent to profit by selling the domain name. As with the Lanham Act, if you build a site about the person you should be safe. But if you park the domain and put it up for sale, that isn’t going to look so good.
Of course, every case is different. You should consult with a competent lawyer regarding your own situation. Your mileage may vary. Do not try this at home.
3. Identity Theft
I included this because our town supervisor accused me of it, but using someone’s name in a domain name is not even close to identity theft. When you build a website about someone, they may get upset, accuse you of crimes, call you names, etc. When it’s a public official who can tell the police what to do, it can be a little more disturbing. Some neutral people might even think you’re a bad person for doing it. Just be ready for that.
It’s certainly possible that other legal issues may arise, but I hope this brief review is helpful.
