Although complaints under the UDRP brought by politicians in the past have sometimes failed on the inability to prove an unregistered trademark, the recent decision in William J. Clinton and The William J. Clinton Presidential Foundation v Web of Deception (NAF Case No. FA0904001256123) failed on the ground of bad faith; that last element could not be proved and the case failed.
The case concerned former US President Bill Clinton and decided in effect that a registrant who registers a domain name in, say, Bill Clinton’s name and then links it to the website of a rival political party, in Clinton’s case the Republican Party, has not done so in bad faith and can keep the domain name registration.
Or at least, to be more precise, bad faith could not be shown in the case in question.
President Clinton had taken exception to the Respondent’s having registered three domain names,< williamclinton.com>, <williamjclinton.com> and <presidentbillclinton.com> and possibly greater exception to the fact that the Respondent went by the name Web of Deception.
Even worse, the Respondent had then linked the domain names to the Republican National Committee’s websites, giving the false impression that Clinton had changed sides or perhaps had always been a secret Republican rather than the Democrat we always believed him to be.
The former President, like all Complainants under the UDRP, had to prove three things to win and have the three domain names transferred to him. First, he had to show that he had an unregistered trademark in his own name. Unlike other celebrities like Madonna and J K Rowling, he did not have a registered trademark and had to prove he his name was associated with particular goods or services. This he did, because he had written several books and made money from them. So he won the first point.
Secondly, he had to prove that the Respondent had no legitimate interest in the domain name. Again, Mr. Clinton was able to do this easily. The Panelist found that Mr. Clinton had made out his prima facie case and that it had not been rebutted by the Respondent. He said:
“Respondent lacks all rights and legitimate interests in the disputed domain names pursuant to Policy 4(a)(ii). Respondent’s rebuttal fails. Respondent’s disputed domain names resolve to an official website related to the Republican Party, which is the party in direct opposition to the political party Complainant endorses. Such use of the disputed domain names does not equate to a bona fide offering of goods and services pursuant to Policy 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy 4(c)(iii).”
But it was at the third hurdle that Mr. Clinton stumbled and fell. Here, he had to prove that the Respondent had registered and used the domain name in bad faith. This he could not do.
To prove bad faith, the ICANN Policy allowed him to prove any one of four things. He could prove that the domain names had been registered to resell them, as a form of greenmail. Or he could prove that the Respondent had been trying to stop him, Clinton, from registering the same domain names. Another option open was to show that the respondent had been trying to disrupt the former President’s business. None of those options seemed likely to succeed.
In fact, it was only the next option that had a chance of success. That option was that by registering the domain names and diverting them to the Republican website, Web of Deception had been misleading internet users seeking information on the former President.
The Panelist appointed to decide the case stated the issue accurately enough;
“Allegedly, the disputed domain names resolve to the official Republican party website in direct competition with (Mr. Clinton), giving the impression (he) is affiliated with its political competitor.”
But it was the answer that the arbitrator gave to this proposition that has caused a great deal of interest.
The decision on this issue was expressed very concisely. The Respondent, it was said, had not transgressed the Policy and had not acted in bad faith, either in registration or use of the domain name. By implication, but only by implication, his argument that he was exercising his rights of free speech under the First Amendment and was acting in the public interest, by showing how easy it was to register domain names, may well have been accepted or at least partly influential in the decision.
So the Clinton domains remain where they were, in the ownership of the Web of Deception and continue to resolve to Republican websites.
The decision has given rise to a lot of comment. A number of website contributors have said that, of course, the conduct of the Respondent was a clear case of attempting to mislead people.
But would voters be misled? Astute voters may not be misled at all. The moment they are directed to the site of a political party that they know is the arch enemy of the person whose domain name has been registered, they will realise that something is wrong and, from that point on, they would not be misled.
Possibly. But what about the case of a politician who promotes views alien from those of his or her party and different from those you would expect to hear that politician espousing. Finding that the domain name took you to the website of an opposing political party would add to the confusion already present.
Moreover, this could be doubly confusing if the politician concerned is an independent or from a minor party and with policy stands that are not well known. In that ca