About a month ago, one of my City Council opponents, Ron Nirenberg, earned some well-deserved notoriety because of his purchase of another candidate’s domain name – rolandobriones.com. According to local columnist Brian Chasnoff:
- The website that Nirenberg created “tars Briones as an unethical liar…. By hitting the ‘low road’ with such verve, Nirenberg’s actions certainly stray from his rhetoric [against taking the low road].”
My reaction to this campaign development was that it hurt both Briones and Nirenberg. About Briones, it confirmed that he was a prolific campaign contributor to Democrats prior to his City Council campaign and to Republicans after he initiated his campaign. About Nirenberg, it revealed that despite his high-minded Good Government, anti-politics sales pitch, he is not above sleazy politics.
Surprisingly, Chasnoff concluded his column by suggesting that Briones was partially to blame for this incident – “Not registering his name online definitely was a mistake.” I responded on-line to the column by challenging Chasnoff’s suggestion:
- “I don’t understand why Kelton Morgan and Ron Nirenberg would think that an unused domain name presents such an irresistible opportunity. Or why Brian Chasnoff would affirm that same position by suggesting that Rolando Briones was careless in not preempting the Nirenberg purchase. I think Kelton, Ron, and Brian need a reality check. Any politician who thinks it is a good idea to buy an opponent’s domain name would fit in well at the Nixon White House.”
This morning’s Express-New brought another example of domain-name mischief. According to a Gilbert Garcia column titled “The Castro Internet takedown,” some unknown entity has purchased the domain name of JulianCastro.org. and has published unflattering stuff on the website. Athough Garcia characterizes the stuff as “a brutal (albeit professionally designed) cybersquatting parade of attacks on Julián Castro… extremely slanted takedown,” he eventually concedes that it is “scrupulously sourced” and “backed by statistics.” He concludes the column by saying:
- “While the info presented on the site is technically accurate, it also left me thinking about the deficiencies of facts when they’re presented without nuance, balance, or context. As Bob Dylan once put it: ‘All the truth in the world adds up to one big lie.’”
All of which brings us to the issue of cybersquatting. Yesterday, while watching a Nirenberg interview on-line, I heard him respond to a charge that he might be guilty of cybersquatting. According to Nirenberg, he was not guilty of cybersquatting because he actually built a website instead of simply buying the domain name and then trying to sell it the person who by right should have access to it. Because I was only vaguely familiar with the term cybersquatting, I decided to dig a little deeper to learn if there were cybersquatting issues with RolandoBriones.com or JulianCastro.org.
According to my Bible, a/k/a Wikipedia:
- The Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), is an American law enacted in 1999 and that established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name. The law was designed to thwart “cybersquatters” who register Internet domain names containing trademarks with no intention of creating a legitimate web site, but instead plan to sell the domain name to the trademark owner or a third party….. Under the ACPA, a trademark owner may bring a cause of action against a domain name registrant who (1) has a bad faith intent to profit from the mark and (2) registers, traffics in, or uses a domain name that is (a) identical or confusingly similar to a distinctive mark.
Thus, although there appear to be a plethora of technical legal issues associated with trademarks, the spirit of the law appears directed toward “a bad faith intent to profit from the mark.” In that sense, the JulianCastro.org conduct does not seem to violate the spirit of the law because the owner is not trying to profit from using Castro’s name. If the site started advertising, however, that would change things.
But the case of the RolandoBriones.com site is more problematic. Nirenberg is not only using the site to publicize his campaign, but he is also using his ownership of the site as leverage to force Briones to take specific actions – specifically, when asked on Talk Now SA whether he would be willing to sell the site for-cost to Briones, Nirenberg said he would do that only if Briones agreed to answer specific questions about his campaign contributions.
That sounds a lot like “bad faith intent to profit.”