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Thinking about the www.kerryedwards.com auction reminds one of the uneasy relationship between personal names, politics and cybersquatting.

When reporters learned that the domain name was taken by Kerry Edwards, the Indiana bail bondsman, at least some headlines were quick to brand Mr. Edwards' conduct as cybersquatting. The Chicago Sun-Times, for example, ran the headline "Kerry Edwards is the Name, Cybersquatting is the Game." Mr. Edwards, of course, had registered his own name as a domain name long before Kerry picked Edwards as a running mate. The Indiana Kerry Edwards had a legitimate reason to do so and he is not properly labeled a cybersquatter.

But what about the registration of a politician's name for the purpose of preventing that politician's use of the name?

At least one case has found registration of a politician's name to violate the ICANN UDRP. See Anne McLellan v. Smartcanuk.com, eresolution, AF 0303 (2000). 

Anne McLellan was a member of Canadian Parliament, Minister of Justice and Attorney General of Canada. The respondent registered the domain names and . The Panel concluded that McLellan had common law trademark rights in her name because she was a well-known government official. The registrant, who had also registered the names of other political figures, had no right or legitimate interest in the domain names and the Panel concluded the registrant had registered the domain names in bad faith.

Different results have been reached where the domain name is used for critical commentary about the politician. Kathleen Kennedy Townsend, Lieutenant Governor of Maryland and then candidate for Governor, was unable to recover domain names based on her name. Townsend v. Birt, WIPO Case No. D2002-0451, 2002 UDRP LEXIS 517 (2002).

A similar result was reached in Robin K.A. Ficker v. John W. Thouhy, 305 F.Supp.2d 569 (D.Md. 2004). The defendant registered the domain name and used it to provide summaries of critical news stories during Robin Ficker's run for Congress in 2004. Ficker sought a TRO. The court denied relief on several grounds. First, the Court concluded that the web site was clearly a political web site and was protected by the First Amendment. Second, because the site included a disclaimer stating that it was an unofficial site and not "Robin Ficker for U.S. Congress," visitors would not be mislead. Finally, the court questioned whether the ACPA protected "personal names that are not trademarked" where the web site was not a commercial use.

The ACPA does provide that personal names, if protectable as marks, are covered by the cybersquatting provisions of Section 43(d). Moreover, personal names that are not protectable as marks are also protected if registered with the specific intent to profit from such name by selling the name for financial gain. 15 USC 1129.

But what about registering the name of a political opponent without the intent to sell it for profit, but merely with the intent of interfering with the opponent's ability to communicate via the Internet? In the non-political, non-personal name context, a pattern of such conduct might be considered cybersquatting under the ICANN UDRP. 

In the political context, is such conduct desirable? Is it legitimate? Is it bad faith? Should it be prohibited?

To put on a sharper point: suppose supporters of George Bush had registered numerous variations of Al Gore's name during the 2000 campaign to interfere with Gore's ability to use the Internet to communicate with voters, or vice versa?

Comments welcome and invited.

Written by Mark Partridge, Attorney & Author

See related topics: Cybersquatting, DNS, Domain Names, Law

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