Recent Case Notes & Commentary

Politicians and Domain Names: Register Early, Register Often

The internet has now found its way into every nook and cranny of modern life. Politics is no exception. In particular, politicians and aspirants running for office have to be aware of whether their name has been improperly put into a domain name and hijacked to cause them damage in their campaign. Some politicians have already taken defensive action to prevent this happening, but others have not.  


One politician who has obviously been aware of the problem and taken some defensive action is Donald Trump. The way he has handled it is to register every conceivable domain name that might be an echo of his name to prevent others getting their hands on them, a practice that by now must be the golden rule in election campaigns. One who clearly was not well prepared is Carly Fiorina, who was an early competitor to Trump for the Republican nomination for President until she dropped out of the race. Ms Fiorina’s problems arose when she omitted to register the domain name carlyfiorina.org which was registered by somebody else who was clearly not a supporter.


Fiorina’s failure to register this domain name resulted in her not only losing a prime piece of digital real estate to launch her bid for the White House, but it also diverted media discussion to her controversial tenure as Chief Executive Officer of information technology giant, Hewlett Packard which she could scarcely have wanted. 


Fiorina fell victim to what can only be described as a political cybersquatter. Depending on their motivations, a political cybersquatter can hold the domain name ‘hostage’ until the politician agrees to pay whatever ransom is being demanded. In fact, Fiorina’s situation may have been simpler if the circumstances involved a cybersquatter whose sole motivation was money, as she may have chosen simply to pay up to gain control of the name. However, the website’s registrant evidently has a serious grudge against Fiorina over her time at Hewlett Packard, subsequently using it to enlighten voters about Fiorina’s tumultuous reign as chief of that company.


Fiorina assumed the job of CEO at Hewlett Packard in 1999. Her honeymoon period, however, was short lived. The technology bubble, fuelled by huge and speculative investments into budding internet companies, created unsustainable growth within the equity markets at the end of the 1990s.  When it all came spectacularly crashing down in early 2000, the effects were near devastating. Believing that restructuring the company was necessary for survival during this tumultuous period, Fiorina oversaw the laying off of 30,000 Hewlett Packard employees over the next five years.  Ultimately, Fiorina remained in the role until 2006, with controversy never far away.


Early in May 2015, Fiorina announced her candidacy to contest the Republican ticket for the 2016 Presidential race in a simple one-line message on Twitter. But, she was unable to register the carlyfiorina.org domain name because someone had beaten her to the punch. Ms Fiorina had registered the domain name carlyfiorina.com and her campaign also had the domain name carlyforpresident.com which was the one she used in the campaign. But a particularly enterprising web user seized on her failure to register carlyfiorina.org, pouncing on it in December 2014. The registrant of carlyfiorina.org then proceeded to fill the site with 30,000 sad-faced emoticons, each apparently representing an employee who was shown the door during Fiorina’s reign as CEO. This is hardly the material that an aspiring US presidential candidate, already considered a long shot to win office, would want on a website bearing her name.


This event raises a simple question; how does a former CEO of a powerful company located at the epicenter of the technological universe, Silicon Valley, who clearly recognises the power of the internet to capture the attention of the American media, make such a ‘rookie’ error? A person considered intelligent and savvy enough to lead a multinational company worth billions of dollars would surely understand the importance of registering the .org top level domain name reflecting her own name when running for office? When considering that Fiorina was using the similar domain name carlyfiorina.com for a website as far back as November 2006 to sell her book, ‘Tough Choices’, it is perplexing as to why she did not simply register the domain name prior December 2014 for her campaign.


Whilst it may be easy to shake our head and ‘tut-tut’ at this inexplicable brainfade, Fiorina is far from alone in candidates falling victim to a political cybersquatter. Already a number of presidential candidates have felt the wrath of a cybersqautter in this race. Fiorina was not the first Republican candidate for the 2016 race to have been cybersquatted and will not be the last candidate for elected office to suffer the same fate.


Known for his conservative views, Republican candidate and sitting Texas Senator, Ted Cruz, has been a vocal opponent of President Obama’s immigration reform. In 2014, Cruz introduced legislation to the Congress in an attempt to prevent Obama from “illegally expanding amnesty” for immigrants. Internet users visiting tedcruz.com would therefore expect similarly strong language and to the same effect, but instead encountered a website expressing ‘Support President Obama. Immigration Reform Now!’, the opposite of what he stood for. Clearly, Cruz should have registered tedcruz.com and controlled its use, but had not done so and was now paying the price. In an ironic reversal of roles with Carly Fiorina, who had carlyfiorina.com and suffered from the use made of carlyfiorina.org, Cruz, having missed out on the far better domain name tedcruz.com, had to make do with the far less familiar tedcruz.org. Clearly, both candidates should have registered both domain names reflecting their names.


In much the same vein, Governor Jeb Bush also suffered from not being fleet-footed enough in the domain name department. Those who visited jebbushforpresident.com, until Bush also crashed in the primaries campaign, naturally expected to find rhetoric praising him and relating to his stated opposition to same sex marriage among other things, and must have been surprised to find that the website was actually in use, as it still is, to promote the qualities of "CJ and Charles - since 1996 Engineers, Doggy Dads, madly in love" and supporting same sex marriage. 


For a while, there was even more trouble, as the domain name jebbush.com was redirecting hits to Donald Trump’s website. The Trump camp denied that it was responsible for this and the Bush camp said that in any event it had registered and used for its website, not jebbush.com, as one might have expected, but Jeb2016.com.  In any event, Bush had clearly also lost control of jebbush.com, for this, at least in Australia, currently directs to a rag bag of political sites with links to www.riversedgecamping.com.au, www.muslimspycatcher.com and other dubious sources of knowledge. You guessed it; clearly both Cruz and Bush, like others, had been cybersquatted. The list could go on, with seemingly no candidate being immune.  


In light of all this, one must ask if it is really all that important to a candidate’s hopes of reaching the Oval Office that he or she should not fall victim to a cybersquatter? In spite of the cybersquatting, Jeb Bush, for a while, was considered a front-runner for the 2016 Republican nomination, although he eventually faded and dropped out.


But the bottom line must be that if the internet is the main means of imparting political knowledge, as it is, candidates must use it properly and sensibly and protect themselves as far as they can from cybersquatters.


On the other side of the political fence,  Democratic front-runner, Hilary Clinton, has also had to contend with cybersquatters during her time in office, and even when she was running against the now President Obama for the Democrat nomination.  In the present campaign, the domain name hillaryclinton2016.com is not hers and it is linked to news items about her meant to be derogatory.


One argument is that search engines, such as Google or Yahoo, have curtailed the effect of cybersquatters. This statement is true to an extent. Rather than expending the effort incurred by entering arbitrary domain names into the address bar, the relative ease in using a search engine means it is more likely a voter will simply ‘Google’ it. Search Engines have been a wonderful development over the last 15 years and have made trawling the internet a much simpler task. Now, a web traveller can merely type in a candidate’s name to access a trove of information at their fingertips almost immediately and take their pick of the sites to which they then proceed. For example, performing a Google search of Carly Fiorina showed the top ranked page at the time being the official Carlyforpresident.com website. No harm done, right? Possibly, but it should and can be avoided.


The same generic search yields the domain name carlyfiorina.org only a few links below the official Fiorina endorsed website. Herein lays the problem for a presidential candidate who believes that search engines will filter out domain name that have been cybersquatted: they don’t.  Or not completely. Not only may the disparaging website appear after conducting a search; the possible media coverage surrounding the failure to register an obvious domain name may actually bump it up in the search rankings and bring more ridicule on the candidate. So, even if the official website is the top-ranked search, not far below may be an address containing harmful information running counter to the platform from which the candidate is launching his or her bid for President or whatever the office may be. Clearly, that should avoided. And it can.


Alternatively, users may click on a domain name of a candidate and rather than finding a website promoting the policies of a particular candidate, may instead be re-directed to a rival of the candidate, as seen above. Remember, all of this information is being associated with a website carrying the name of a candidate, which may not be the image that a candidate, particularly the potential leader of the free world, wants to portray.


Promptly registering several variations of a domain name before they can fall into the hands of an opportunistic cybersquatter can be seen as the obvious solution to these problems and as a good form of brand protection. Having in place an effective digital strategy that maximises the potential of the Internet and social media is a powerful weapon in the armoury of a candidate. Communicating over the Internet allows a candidate to connect with potential voters and donors, and in doing so bypassing traditional media outlets that may filter or distort their message. Accordingly, if used properly, digital technology provides a platform for a candidate to retort quickly when criticised and allows for targeted messages towards specific groups of voters, thereby controlling, or at least steering, the ‘conversation’ in the direction that the candidate wishes.


Of course, some candidates who are slow off the mark and only subsequently realise their error in not putting their foot on valuable domain names, find that their best solution is simply to pay up and buy the offending domain name.  A case in point is Carly Fiorina’s fellow and also unsuccessful Republican 2016 presidential candidate, Rand Paul, who recently had an expensive lesson in his pursuit of the party’s nomination. The Senator from Kentucky reportedly paid $US100, 000 to purchase the domain name randpaul.com, despite it already being operated by his supporters. The enormous size of the payment not only underlines how lucrative US politicians’ names may be in the digital world, but also shows the lengths to which  a candidate may go to control the message conveyed by a domain name bearing their name. Current Governor of New Jersey and at one stage another Republican candidate, Chris Christie, recently secured chrischristie.com from a Wisconsin man who had the good fortune to be born with the same name as the Governor. It seems it was necessary for Paul, and possibly Christie as well, to pay substantial amounts of money to the websites’ original registrants because they would have been otherwise unlikely to gain control of the domain names in question.


But what if the domain name is firmly in the grip of a cybersquatter demanding money or in the grip of one who is not interested in money, but really wants to keep the name to denigrate the candidate or, conceivably for a legitimate purpose?


Where such a dispute arises over a domain name registration, a candidate who has missed out on the name and desperately wants it, may seek arbitration to have the website either transferred to them, or totally cancelled, under the Uniform Domain Name Dispute Resolution Policy (UDRP). Designed as a quick, easy and affordable mechanism, the UDRP facilitates the protection of trademark owners against being held to ransom for large sums of money or some more eccentric motive. Provided that the candidate can show use and exposure of a trademark in connection with some form of commerce, the UDRP recognises that politicians can ‘trademark’ their name, because they are engaging in commerce under the name. If they can by that means show a trademark in their own name, the candidate may have a fair chance of having the domain name prized from the grip of the registrant and transferred to the candidate.


For example, Hillary Clinton utilized the UDRP to wrest control of the domain name hillaryclinton.com in 2005 from a registrant who thought she had hit the jackpot by registering the name. Mrs Clinton was able to show that she had a trademark in her own name, as she had authored books in her name for which she had been paid and hence she had been engaged in commerce under her name. Nevertheless, a claim that a political candidate has a trademark reflecting his or her name will not automatically succeed, as it must be proved by evidence showing that the name has been used in trade and commerce. A case concerning Ms Clinton’s husband, the former President, further illustrates this point. President Clinton was incensed that someone had registered three domain names reflecting his name, for example, williamclinton.com. President Clinton of course is a Democrat, but the domain name had been linked to a Republican Party website, in fact the site of the Republican National Committee. Like some politicians and celebrities, he had not registered his name as a domain name, but he was able to establish a common law trademark; the arbitrator who decided the case relied on the fact that Clinton’s “best-selling books are probably enough to qualify his personal name as a common law mark.” There was also a warning in the decision, however, for politicians and others who simply rely on their fame to show a trademark. The arbitrator said:


"Reluctantly, the Panelist (or arbitrator) concludes that President Clinton has established a common law mark in his name. A mark is a secondary identifier of the source of goods and services. President Clinton’s best-selling books are probably enough to qualify his personal name as a common law mark". [This Panelist is partially responsible for the problems created by allowing common law marks in personal names, having been the Panelist that wrote Mick Jagger v. Denny Hammerton, FA7000095261 (Nat. Arb. Forum Sept. 11, 2000).]  (emphasis added). Indeed, President actually failed in his claim because, as will be seen, he was unable to show that the alleged cybersquatter had registered and used the domain names in bad faith.


It would seem therefore, first, that a politician who has had his or her name put into a domain name without consent may use the UDRP fast track arbitration system to recover the name if there is a trademark in the name on which the politician can rely. Clearly it will be better if it is a registered trademark (which some celebrities like Madonna have had the foresight to arrange). If not, the politician will have to try to prove an unregistered or common law trademark in their name and they may be unsuccessful in doing so. They will have to show, as both the Clintons were able to show, that their name has been used at least to some extent in trade and commerce, such as by writing and selling books.


But that is not the end of the story. The first-come, first-served registration of domain names makes it difficult for a candidate to take control of a website where the domain name is registered, but is being used for legitimate political discussion.  Fiorina and candidates in a similar position could still fail if they brought an action under the UDRP, as the content of the websites may well be held to be protected under the impenetrable protective shield, and heart of the US Constitution First Amendment, the right to free political speech. 


Given the disposition of arbitrators on UDRP panels to protecting political discourse, a claim for the domain name to be transferred could therefore still fail. This will depend of the contents of the website to which the domain name is directed. It is at least possible that if Ms Fiorina had brought a claim, the original registrants would have been able to maintain that what was posted on their site, including the 30,000 sad emoticons, was a valid expression of free speech, as it was drawing attention to a policy failing of a candidate running for office and hence was protected; unemployment, such a had occurred at Hewlett Packard is, after all, a legitimate area of political debate. That was the type of situation that led to President Clinton failing in his claim, even although Mrs Clinton succeeded in hers. In President Clinton’s case, the website to which the William Clinton domain names had been directed was held to be legitimate, as the registrant argued successfully that “he registered domain names of famous persons in part to make a point concerning the ease of registration of such domain names.  He further notes that he has never sold a politician’s domain name.  He also states that he has worked with Senator Hatch and others to promote the idea that some domain names deserve protection under the federal statutes, including the names of famous places and politicians.” This found favour with the panelist as did the fact that there was no specific evidence of bad faith, such as trying to sell the domain name. In contrast, Mrs Clinton succeeded in her case as the domain name was linked to a site that had references to Monica Lewinsky and other untoward references which showed bad faith. The result in these type of cases will thus be determined by what use the registrant makes of the domain name, what is on its website and any other circumstances that might show or not show bad faith in the registration and use of the domain name.


Pre-emptive registration of various domain names can save a potential candidate many the headaches that can arise later on in a campaign, such as the public relations fallout experienced by Fiorina, Cruz and Bush. Candidates need look no further for guidance on the value of skill-fully registering domain names in advance than the current darling of the pop world, Taylor Swift. Pop star Swift, who according to Forbes has accumulated a net worth of close to $200 million, derives much her wealth from marketing herself as a clean cut, girl next door entertainer. You could imagine the gasps when word leaked out of Swift having registered taylorswift.porn. But no, Swift was not starting a porn site. The Starlet, who received numerous plaudits for her marketing, was preventing future misuse of her image by proactively registering a potentially damaging domain name to her image-and then, of course, making sure that it was not used.


At least one prominent presidential candidate, Donald Trump, has taken a similar approach, up to a point, and seems to have clicked early in the piece to the importance of registering domain names that reflect his name, and also domain names that might be used to attack him. Thus, he is reported to have acquired over 3000 domain names, not only the official domain name for his campaign, donaldjtrump.com , but many others including Ihatetrumpvodka.com., trumpnetworksucks.com, donaldtrumpponzischeme.com and donaldtrumpsucks.com. He has even cast a wide enough net to protect his wife and family, with several domain names including ivankatrumpeyes.com and suchlike. No doubt this achieves part of its objective, said by his campaign to be to stop "predatory people" from damaging his image. But there seems no end to the inventiveness of trouble makers who really set their minds to registering domain names that will get past whatever firewalls are set up set up to stop them.


Although instances arise where candidates are successful in having a domain name reflecting their name transferred to them, this will also likely require time to bring a claim and pursue it to the point of a decision. On the campaign trail, time is something in perpetual short supply. There is only a relatively small period of time for the candidate to get his or her name and message out to the public; seeking arbitration or court proceedings to have transferred a domain name bearing the candidate’s name will only further limit what little time the candidate has. Therefore, paying the approximately $25 annual subscription to register a domain name, preemptively avoids the later and possible public relations embarrassment of handling the crisis when it emerges that the candidate has been outsmarted by not registering potentially offending domain names in advance. So, acting promptly to protect the candidate’s name and image by preventing opponents from getting hold of a platform from which to launch attacks on the credibility, previous dealings, or policies of the candidate is clearly desirable. The message to candidates should be: register early and register often.


Other help may be on the way. In an attempt to counteract the impact of political cybersquatters, the new top-level domain, .VOTE (one of the new range of generic top level domains) has recently been introduced. By restricting registration of personal domain names under .VOTE  to those officially connected to politics, it is hoped that this new top-level domain will prevent or lessen the scope for voters becoming confused on whether a website is official or not. But while this may stop the registration of some potentially misleading domain names in the future, it will likely take time for average internet users to start typing in .VOTE. Although a step in the right direction, the .VOTE top level domain name will not be likely to assist candidates in 2016 races and its future value can only be speculative.


The power of the internet to convey information has undoubtedly transformed how politicians communicate with their voters. Much like in the 1920s when the radio was the new medium of choice to convey their message, or how the introduction of television halfway through last century allowed voters to watch candidates in real time, the digital technology of today has revolutionised how politicians connect with voters. President Obama’s first presidential campaign, of course, was famous for its mastery of social media and this is often credited as having had a real effect on the successful outcome of that campaign. However, to avoid embarrassment and confusion prevailing, whether in America, Australia or anywhere else, it is undoubtedly true that candidates must always remember to strike first by registering the domain names they want early and registering as many variations of them as they need or might need in the future, even if only to stop other people using them. It will be a small cost compared to the large and increasing cost of election campaigns today and a small price to avoid adverse consequences.

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