Trademark: The tort of choice for censors
Originally posted 2009-10-20 23:46:20. Republished by Blog Post Promoter
A posting over on the Big Government blog details recent attempts by the American Federation of Teachers (AFT) to shut down the website at AFTExposed.com (which, as you might guess from the name, doesn’t have very nice things to say about the AFT). The AFT’s General Counsel has sent the operators of the offending website a cease-and-desist letter, demanding “immediate cessation of use of the domain AFTexposed.com or any other variant that includes the acronym AFT.” The asserted grounds: (a) trademark infringement (that use of the AFT acronym is “likely to cause confusion, or to cause mistake, or to deceive”), and (b) violation of ICANN’s Uniform Dispute Resolution Policy (on the grounds that the AFTexposed.com name is “confusingly similar” to AFT’s trademark and was “registered in bad faith.”).
It’s pretty much pure unadulterated nonsense, little more than an attempt by the AFT to silence a critical voice, and I hope that the AFTExposed.com folks don’t cave in to the pressure. The trademark claim is very, very weak; consumers are pretty stupid sometimes, but they are not nearly stupid enough to be confused into thinking that a site called “AFTexposed,” which has as [its] tagline prominently displayed at the top of the site “The website the AFT doesn’t want you to see,” is somehow affiliated with the AFT.
Well forget about the tagline; it’s too late once you get to the site — there’s already been an incidence of the dreaded “initial interest confusion” by then! But David Post is right: In this case, the domain name itself negates any possibility of that, and you’ve got nothing but fair, fair use for a defense.
That won’t stop a wealthy plaintiff, though — and who’s wealthier these days than public employee unions? — from suing, however. After all, there’s pretty much never fee-shifting in defendants’ direction under the Lanham Act, although the statute does provide for it (or for that matter for frivolous copyright claims) But good luck on that.
So trademark infringement remains the legal claim of choice for those seeking to shut down smaller, poorer message opponents. File yours today!
UPDATE: Johnny may not be able to read, but the AFT knows how to interpret blog traffic logs. They’ve backed down.