Type in jebbush.com to your browser.
If you would rather not, I can just tell you what happens. It brings you to the Trump campaign website. There are plenty of news sites reporting this, but we at Popehat, we're the only ones to give you the hot and bothered legal analysis.
Someone at the Bush campaign is about to get a stern talking to. Yes, he should have thought to register that domain first. But, we often hear that from cybersquatters, who take the position that you should think to register every permutation of your name, from zero to infinity, or it is fair game.
Morally, we can debate that. Legally, it isn’t the case.
It seems to me that The Donald (or his campaign) is in violation of the ACPA.
The Anti-Cybersquatting Consumer Protection Act
Congress enacted the Anti-Cybersquatting Consumer Protection Act (ACPA )to combat this very kind of thing.
One of the purposes of the ACPA is to stop bad-faith registration and use of domain names, including those that correspond to personal names. See Schmidheiny v. Weber, 319 F.3d 581, 582 (3d Cir. 2003); Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001) (The ACPA made it “illegal for a person to register or to use with the ‘bad faith’ intent to profit from an Internet domain name that is "identical or confusingly similar" to the … name of another person or company.”)
Early on, there was significant debate as to whether the ACPA should protect the personal names of individuals. In the end, Congress considered personal names to be so worthy of protection that it codified this protection under two separate sections of the ACPA 15 U.S.C. § 1125(d)(1)(A)(i) and 15 U.S.C. § 1129. (Which is now 15 U.S.C. § 8131)
The initial version of the ACPA provided protection for personal names only to recognized celebrities, stating: “A person shall be liable in a civil action by the owner of a mark, including a famous personal name…” 145 Cong. Rec. H 10823, H10823 (106th Cong. Oct. 26, 1999). Nevertheless, Representative Bono prevailed upon his colleagues to expand this protection to all individuals. “This protection in my opinion must not be limited to the famous or just celebrities, it must be universal.” 145 Cong. Rec. H10823, H10830 (106th Cong., Oct. 26, 1999).
As the ACPA wound its way through the legislative process, the Congressional intent to protect personal names became fully apparent. “This bill prevents cybersquatting when a trademark, service mark, famous name or any personal name is involved.” 145 Cong. Rec. H11811, H11815 (106th Cong., Nov. 9, 1999). Senator Hatch agreed, and upon presentation for the President’s signature, it is clear that the ACPA contained a clear intent to protect both trademarks and personal names.
As with trademark cybersquatting, cybersquatting of personal names poses similar threats to consumers and e-commerce in that it causes confusion as to the source or sponsorship of goods or services, including confusion as to the sponsorship or affiliation of websites bearing individuals' names. In addition, more and more people are being harmed by people who register other peoples names and hold them out for sale for huge sums or money or use them for various nefarious purposes. 145 Cong. Rec. S14986, S15019 (106th Cong., Nov. 19, 1999).
This Congressional intent manifested itself in the enactment of not one, but two separate additions to the Lanham Act providing protection for personal names, both of which would entitle Jeb to relief. 15 U.S.C. § 8131 (the former 1129) and 15 U.S.C. § 1125(d)(1)(A)(i).
The Congressional intent seems to be to provide two avenues for an individual to reclaim his or her name from a cybersquatter. Section 8131 has a lower standard of proof – requiring only that the Plaintiff demonstrate that the Defendant had a “specific intent to profit.” However, that "profit" must be sought through sale of the domain name itself, not just through its use. On the other hand, 15 U.S.C. § 1125(d)(1)(A)(i), requires that the Plaintiff show that the Defendant had a “bad faith intent to profit,” but requires no specific intent to profit through the sale of the domain name. Section 1125(d) provides for financial penalties of between $1,000 and $100,000 in statutory damages in addition to the forfeiture of the domain name. Section 8131 comes along with lesser remedies of forfeiture and discretionary awards of attorneys’ fees and costs to the prevailing party.
Now if Jeb was not famous, and thus his name did not function as a trademark? The matter might be a little different. In Dawson v. Brandsberg, 2006 U.S. Dist. LEXIS 73512, 13-7 (W.D. Va. 2006) the Western District of Virginia implicitly agreed that 15 U.S.C. § 1125(d) covers all personal names, even those that are not personal names and trademarks. However, this theory was explicitly rejected by the Middle District of Florida in Salle v. Meadows, 2007 U.S. Dist. LEXIS 92343 (M.D. Fla. 2007). C.f. Bogoni v. Gomez, 847 F. Supp. 2d 519, 524 (S.D.N.Y. 2012) (15 U.S.C. § 8131 and 1125(d) are strikingly similar, and analyzed similarly).
But, is there an “intent to profit?” I see nothing in the language of 1125(d) to suggest that “profit” is limited to pecuniary gain. The Northern District of Texas specifically addressed this question. “Profit need not be pecuniary to come within the ACPA, provided the person has a bad faith intent to benefit in some way from his registration, trafficking in, or use of the plaintiff's domain name.” Bear Stearns Cos. v. Lavalle, 2000 U.S. Dist. LEXIS 23007, *18 (N.D. Tex. Oct. 27, 2000)
The First Amendment
Ok, but what about a First Amendment defense? Wouldn’t that allow Trump to use the domain name this way? I don’t think so.
On one hand, other famous people have lost cases like this. For example, Jerry Falwell famously lost a case in which a critic registered www.fallwell.com. The court in that case said that since there was no bad faith intent to profit, there was no ACPA violation. Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005). In that case, the fallwell.com misspelled domain name directly led to a criticism site.
In another case, a less-famous person (yours truly) won on similar facts. The infamous Crystal Cox had criticism sites, aimed at me. But, they were not launched for the purpose of criticism, but rather as part of an extortion scheme. Randazza v. Cox, 920 F. Supp. 2d 1151, 1157 (D. Nev. 2013) (“Defendants' actions leading up to the filing of the Complaint, as well as Defendants' past behavior, as represented in Plaintiffs' reply briefing, clearly seems to indicate cyber-extortion. Specifically, Defendant Cox's request for $5 million in exchange for and her offering of "reputation management services" indicate her intent to profit from the registration of Plaintiffs' personal names as Domain Names.”) See also Marc J. Randazza v. Reverend Crystal Cox et al., D2012-1525 (WIPO Nov. 30, 2012) (“The Respondent then offers to provide “reputation management” services to her target in return for a fee. Such websites are not ‘criticism sites’ but merely a pretext for the Respondent’s bad faith extortionate use”)
Of course, Donald Trump is not Crystal Cox, although one might wonder if they use the same hairdresser. Trump is using the domain name for political purposes, but certainly to profit in some manner, consistent with how that term has been interpreted in the past. If the domain forwarded to a website that was simply devoted to criticizing Jeb, like this one, it might be ok. Even if it just forwarded to a video of Rick Astley, it might very well be protected (especially if Jeb filed suit in the Fourth Circuit, where the Falwell case is binding).
But, as it stands, I’d say that Trump’s use of jebbush.com is a violation of 15 U.S.C. § 1125(d), and perhaps 15 U.S.C. § 8131, although the latter is a bit of a stretch, since that has tended to require an actual pecuniary intent, not just a broadly-defined profit motive.
Whoever is in charge of the internet team at Jeb’s campaign ought to meet the same fate as the guy who green lighted his idea to have a religious test for immigration. On the other hand, Jeb can probably get that domain name from Trump under 15 U.S.C. § 1125(d).
Now Donald, get a Rickroll on that domain, and maybe you can keep it for a while.
[epilogue] Nothing in this post should be deemed to be a statement about Trump as a candidate. He isn't my first choice. But, I prefer him over Jeb.
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