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 politicia