As this election year heats up candidates in all types of political races are trying to reach likely voters at their doors, on their telephones and on the Internet. In this race for voters you might guess that a candidate’s domain name plays an important role in sharing his or her message with likely voters. What if a candidate’s domain name is already taken by a third party? What if a candidate’s name has already been taken by their opponent? Many of today’s candidates, finally recognizing the importance of a strong Internet presence in races for political office, are facing the reality of this intellectual property concern.
First, candidates may find that an “innocent” third party already has their preferred domain name. A classic example of this was the site “kerryedwards.com” in the 2004 United States presidential election. Kerry Edwards is the name of an individual, who had registered the site for his own personal website. Of course, “Kerry” and “Edwards” were also the two last names of the Democratic presidential candidate, John Kerry, and his vice presidential running mate, John Edwards. While the Kerry political campaign reportedly inquired about the name, Mr. Kerry Edwards declined to sell. Because Mr. Kerry Edwards was using the name for his personal use the Kerry campaign had no legal grounds to obtain the name (whether it would have been a wise political choice is another story entirely).
Sometimes, there are more legitimate infringement issues. In Montana, for example, both major political parties have taken turns at registering the names of an opposing candidate. Candidates who are victims of the practice routinely accuse the respective registrants of infringement. Registrants of the names proclaim that their actions are protected under free speech laws.
Some state legislatures, undoubtedly containing some politicians that were victimized by the practice, have offered legislation seeking to combat the practice. At this time only California has passed such legislation into law. The California Political Cyberfraud Abatement Act defines “political cyberfraud” as:
A knowing and willful act concerning a political Web site that is committed with the intent to deny a person access to a political Web site, deny a person the opportunity to register a domain name for a political Web site, or cause a person reasonably to believe that a political Web site has been posted by a person other than the person who posted the Web site, and would cause a reasonable person, after reading the Web site, to believe the site actually represents the views of the proponent or opponent of a ballot measure.
Effectively, California’s law seeks to provide trademark protection to political candidates, at least to the extent that the site refers to the candidate’s political campaign.
The intersection (or clash) of free speech and intellectual property rights as protected by this law suggests that it is only a matter of time before it is challenged as unconstitutional by a domain registrant. When the time comes, a potential challenger will have a good chance of invalidating the law. Courts have historically been uneasy to limit speech when it comes to matters as open as a campaign for public office.
In the meantime, potential political candidates should always do the simple thing: register your most important domain names before you even consider entering the political arena.