Trademark: The tort of choice for censors

Same old, same old we’ve been talking about since forever (via Glenn):

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.

Boomerang_(PSF)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.

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Author:Ron Coleman

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14 Responses to “Trademark: The tort of choice for censors”

  1. Richard Nieporent
    October 21, 2009 at 11:03 am #

    Be careful what you say, Ron. The AFT is not an organization to be trifled with. If you value the future of the world, do not provoke them!

    • October 21, 2009 at 3:52 pm #

      LOL, forgot about that line. But I don’t need no stinking link to know who Albert Shanker is! I was there, Richard!!!

      And what more proof of the bankruptcy of the ATF does anyone need than my public school education, anyway?

Trackbacks/Pingbacks

  1. “Domain bullying” - October 21, 2009

    […] Via David Post at Volokh, a nastygram sent by the American Federation of Teachers to the critical site AFTExposed.com. More: Ron Coleman, Likelihood of Confusion. […]

  2. Ron Coleman - October 21, 2009

    Trademark, the tort of choice for censors- latest is Am Fed'n of Teachers: http://bit.ly/4ygq76 at LIKELIHOOD OF CONFUSION

  3. GoetzFitzpatrick LLP - October 21, 2009

    Trademark, the tort of choice for censors – latest is Am Fed'n of Teachers: http://bit.ly/4ygq76 at LIKELIHOOD OF CONFUSION

  4. Ron Coleman - October 21, 2009

    Trademark, the tort of choice for censors – latest is Am Fed'n of "Teachers" http://bit.ly/4ygq76 at LIKELIHOOD OF CONFUSION®

  5. Ron Coleman - October 21, 2009

    AFT backs down from specious TM claim over website — http://bit.ly/OCcB. See http://bit.ly/4ygq76 and @overlawyered = http://bit.ly/lteBK

  6. Meg Langley Grainger - October 22, 2009

    Trademark: The tort of choice for censors http://ow.ly/vP0m Another article worth reading from RT @RonColeman

  7. Meg Langley Grainger - October 22, 2009

    Trademark: The tort of choice for censors http://ow.ly/vP0m Another article worth reading from RT @ RonColeman

  8. Meg Langley Grainger - October 23, 2009

    Trademark: The tort of choice for censors http://ow.ly/vXHH Another article worth reading from RT @ RonColeman

  9. overlawyered - October 26, 2009

    RT @RonColeman: AFT backs down from specious trademark claim over website — http://bit.ly/OCcB http://bit.ly/4ygq76 http://bit.ly/lteBK

  10. InternetLaw - October 26, 2009

    “Trademark: The tort of choice for censors” http://tinyurl.com/yfeqjk5

  11. Steve Eberhardt - October 26, 2009

    RT @InternetLaw “Trademark: The tort of choice for censors” http://tinyurl.com/yfeqjk5

  12. November 3 roundup - November 3, 2009

    […] of Teachers backs off earlier aggressive trademark stance against critical website [AFT Exposed via Ron Coleman, […]

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