Can Hillary File a UDRP on ClintonKaine.com? We Ask the Experts
ClintonKaine.com has been a domain that's been in the news quite a bit recently. In August, the domain sold on Flippa for $15,000, and since then there has been speculation as to who bought the name. A discussion on NamePros told us that the domain was initially transferred to Donald Trump's web design firm, before being put under WHOIS privacy protection.
Over the weekend, the news was broken on DomainInvesting.com that ClintonKaine.com now forwarded to a page on Donald Trump's website, entitled "Disqualify Hillary Clinton", which shows the following landing page:
Given the fact that Donald Trump's campaign is seemingly using Ms Clinton's own name against her, would she be able to successfully acquire the domain via a UDRP?
A UDRP would allow Hillary to take the domain away from Donald Trump's campaign, and stop them from using the domain. However, would Hillary have reasonable grounds to file a UDRP, considering the domain's current use?
stevan.jpg I asked two Intellectual Property attorneys to comment on this; Stevan Lieberman of APLegal.com and Zak Muscovitch of DNAttorney.com.
First of all, we have Stevan Lieberman (right) of APLegal.com who, along with another senior attorney at APLegal, Debora McCormick, commented on this question. Please note that both Stevan and Zak's comments have been shortened to fit this article, but both responses can be downloaded in full at the bottom of this page:
Given the fact that there is less than 65 days left till the election, it is more likely that Hillary Clinton would file an ACPA federal action in a US District Court in NY against the registrant of ClintonKaine.com, if she chose to take any action at all.
Hillary Clinton is a resident of New York, therefore she could file a ACPA federal court action against the registrant of ClintonKaine.com and show: (1) the Clinton common law brand marks are either distinctive or famous; (2) the domain name is identical or confusingly similar to the Clinton / Kaine marks; and (3) registrant has a bad faith intent to profit from use of the mark (See Sporty's Farm L.L.C. v. Sportsman's Mkt., Inc., 202 F.3d 489, 497-99 (2d Cir.2000).
There is a high probability of obtaining an expedited restraining order / injunction to “pull down” the website until the merits of the case can be heard.
Since Hillary Clinton was the 67th Secretary of State, was a United States Senator from 2001-2009 and is currently running for President of the United States along with Tim Kaine as her Vice President, given the reputation and renown of the Hillary Clinton and Tim Kaine, most Internet users who see the domain ClintonKaine.com are likely to immediately recognize Clinton’s and Kaine’s common law rights and assume that the domain and the website is associated with them and are owned, controlled or approved by them.
There is no doubt that the respondent registered ClintonKaine.com with Hillary Clinton and Tim Kaine in mind. According to the WHOIS history record, the domain is currently registered to a small web designer in San Antonio, Brad Parscale and his firm Giles-Parscale.
According to an article in The San Antonio Business Journal by Mike W. Thomas, Donald Trump hired Giles-Parscale to build a website for Trump’s exploratory campaign. Now the domain ClintonKaine.com resolves to a DonaldTrump.com website.
There is no other reasonable explanation except that respondent, a Trump/Pence supporter, registered the domain in bad faith with the intention to redirect people looking for Clinton and Kaine to a Donald J. Trump webpage. Donald J. Trump has a First Amendment rights to comment upon and criticize Hillary Clinton however, he may not do so by using Clinton’s mark to confuse people into visiting his website. Such egregious activity constitutes bad faith.
zak-muscovitch.jpg We asked the same question to Zak Muscovitch (left) of DNAttorney.com, who told us:
If someone has a claim it is not clear that it would be Hillary Clinton herself, since the domain name also comprises Tim Kaine’s name. Perhaps it would be the Democratic National Committee (DNC). From a practical perspective, if she were to commence a UDRP Complaint today, she might not even get the decision in time, or at least not long before the election itself.
The last time I studied UDRP timelines in 2014, the median time for publication of a decision by WIPO was nearly 64 days, and the median time for NAF was 44 days. But regardless of the practicalities, for a number of reasons, it is unclear whether a UDRP Complaint over this domain name would even succeed if properly defended and heard by a decent UDRP panel.
But regardless of the practicalities, for a number of reasons, it is unclear whether a UDRP Complaint over this domain name would even succeed if properly defended and heard by a decent UDRP panel.
First of all, it is unclear whether CLINTON KAINE is even a trademark, since trademarks by definition, must be used in commerce. This ‘ticket’ is certainly used in politics, but it is not clear whether it is used in commerce, like a trademark has to be in order to qualify as such.
Second of all, even if it has been used in commerce, for example, through the sale of branded paraphernalia, there are very strong freedom of speech rights in the US, such that the registrant could possibly argue that there is a fundamental right to register and use this domain name for freedom of speech purposes. Even if the domain name is being forwarded to a Trump website, that could assist, rather than detract from those freedom of speech arguments.
Lastly, there is a more nuanced, even philosophical argument, that the election itself is the most appropriate place to resolve this dispute, and it may not help either party to be involved in a legal proceeding over this domain name.
Ultimately, I don’t think there is going to be a UDRP both for the practical reasons mentioned above, and also because the DNC would likely not want to start a dispute where it was likely that freedom of speech rights would be used as a defense, and also because right now they have bigger fish to fry.