Gottfried, of course, made these statements for the sake of comedy and in no way intended anyone to believe them.  Popular talk show host Glenn Beck, however, has been accused of using a similar rhetorical technique in attacking those with whom he does not agree.  The tactic involves coming up with a wild accusation and then suggesting that the accused party’s failure to prove its falsehood is proof of its veracity (see here for an example.)

In September of last year, a user from the Fark.com forums decided to create a parody website turning Beck’s method back on him and asked why he has not denied that he raped and murdered a young girl in 1990.  The trouble came, however, when the site was registered under the domain name “glennbeckrapedandmurderedayoungirlin1990.com.”  Within a few days, Beck’s lawyers fired off a complaint to the World Intellectual Property Organization asking that the domain name be cancelled because of potential for confusion with Beck’s trademarks.

That news has since passed and Beck lost his case.  After the WIPO decision explaining that the website was permissible parody, the domain owners nonetheless gave control to Glenn Beck and there is no longer any content at that domain (although the same content is now hosted here. )

Defamation by Domain Name?

A more interesting question than the trademark dispute, I think, was raised in an Ars Technica posting discussing the controversy.  In that post, Ars Technica quoted Public Citizen attorney Paul Levy who explained that there was a significant chance for a defamation claim based solely on the domain name. Levy said that the domain name could be actionable if the statement is false and stated with actual malice.  Certainly, the statement is false. Glenn Beck did not rape or kill anyone in 1990 (but why hasn’t he called me to deny it?), and it’s possible a court could find the statement was made with the malice requisite for a successful defamation claim.

The problem here is whether a court should regard a domain name standing alone as statement.  There have not yet been any cases that find defamation based solely on a domain name.  But in PETA v. Doughney, 113 F.Supp.2d 915, the People for the Ethical Treatment of Animals sued a man who had registered the domain “peta.org” and created a parody site entitled “People Eating Tasty Animals.” The Eastern District of Virginia held that the defendant’s domain name could not be protected by a parody defense because the domain name did not simultaneously project two antithetical ideas. The court refused to consider the domain name in context of the entire site and instead analyzed it independently. The Fourth Circuit affirmed the decision.

While Peta v. Doughney was a trademark case and considered under the Anticybersquatting Consumer Protection Act, if a court were to apply a similar analysis to a hypothetical defamation suit arising from glennbeckrapedandmurederedayounggirlin1990.com, then it would very likely be considered a defamatory statement. But would this make sense?

A Domain Name Should Not Be Considered In Isolation

In my opinion, although there does not seem to be well-established law on this point, courts should not consider domain names in isolation. A domain name is a way of signaling the origin of a website or allowing people to view the content associated with the domain name. Domain names are not generally posted as free-standing statements, but are almost invariably linked to a description or preview of the web page’s content. Even those people who type the domain name directly into their browser’s address bar would almost certainly have an idea of the site’s content before they type it in.

So how could an otherwise defamatory statement made only through a domain name and clearly identified as false in the content of the web page cause any actionable harm? If in real life a domain name is not used independently from the site’s content, or knowledge of the content, then it should not independently give rise to a defamation claim.

To illustrate the point, take this purely fictional example. Suppose I registered “joesmithrobstheelderly.com” and create a site with a header stating “Joe Smith does not rob the elderly, but why won’t he deny the rumors? A parody website.” To a person reading the domain name alone, it would appear that I am stating that Joe Smith does, in fact, rob senior citizens. Equally clear to a person reading just a few sentences of the website, however, is that the domain name is not an independent statement, and that Joe Smith does not rob senior citizens. Under reasoning paralleling Peta v. Dougney, I could be found liable for defamation even though in context of site it is abundantly clear that I am not asserting the domain name as an independent statement.

In the context of web sites, courts should analyze the respective components in the manner in which they are generally understood. A domain name is not generally understood as a statement of fact, but as a locator for the content on a web site. A defamatory statement in a domain name that is not refuted by the site’s content would reasonably give rise to a defamation claim because in context it is still defamatory. If reading the domain name in context makes it clear, however, that the domain name is not a statement being asserted as truth, then there should be no potential for defamation liability. If someone does register “kylebarnettmakesunfoundedassertionsabouttrademarklaw.org,” I promise not to sue. So long as the truth is clear in context.

• Bloomberg reports that Yahoo has settled a lawsuit that accused the Internet search company of allowing unauthorized resellers of Mary Kay products use Mary Kay’s logos in pop-up advertisements.

• Facebook is sued again for being too free with your personal information: Wired.com’s Threat Level blogs that a Texas woman has filed a lawsuit against Facebook, accusing the company of conspiring with Blockbuster to illegally obtain information from users who rent or purchase movies from Blockbuster.com.

• The new Rock Band ticks off Gwen Stefani: LA Times blogs that the band No Doubt has filed a suit against Activision, the maker of Guitar Hero, for exceeding contract terms outlining the permitted uses of avatars of various band members.

• In patent news, Patently-O provides a comprehensive roadmap on how to construe patent claims.

• David Kappos, the Director of the US Patent and Trademark Office, has recently put up a blog site for promoting dialogue with the IP community.

• The downside of being a monopoly: Gizmodo.com thinks that the recent settlement between AMD and Intel for $1.25 billion will not end accusations of Intel’s anti-competitive business practices.

• The International Business Times writes that Aruba Networks Inc. has agreed to settle with Motorola for $19.8 million for the alleged infringement of two patents related to the management of wireless computer networks and network security.

• From the biggest screen to the courtroom: The Wall Street Journal reports that Cinemark is seeking declaratory judgment of non-infringement and invalidity of two Imax theater-geometry patents.

Twitter usernames are valuable

Twitter, created in 2006, is one of the fastest growing web sites in the world, and is among the top fifty most popular sites as ranked by Alexa. Users can post updates (or “tweets”) of up to 140 characters. Many celebrities and corporations now use Twitter to give their followers information about their daily activities, photographs from events, or links to web pages.

On Twitter, the username doubles as a web address. For example, the user “donttrythis” (Adam Savage, co-host of the Discovery Channel show “Mythbusters”) can be found at Twitter.com/donttrythis. As with domain names, short and readily-identifiable names are preferred.

With the rapid growth in traffic to the site, corporations have been staking their claims to Twitter usernames. But before many corporations could gain control of the Twitter username that corresponds to their brand name, individuals registered them – for example, Twitter.com/nike. Many bloggers, lawyers and non-lawyers alike, began warning corporations to protect themselves from this so-called “Twittersquatting.”   Without the protection of a statute analogous to the Anti-Cybersquatting Consumer Protection Act, trademark owners are left at the mercy of Twitter to determine how to assign, suspend, and reassign usernames.

Corporations are becoming more aware of their presence on Twitter

In January 2009, attorney and engineer Erik J. Heels wrote a blog post discussing the failure of an overwhelming majority of the top 100 brands in securing their brand name on Twitter. Incredibly valuable brands such as Coca-Cola, McDonald’s, Microsoft, IBM, Marlboro, and many others did not control their brand name on Twitter.  While 97 of 100 had the internet domain name that corresponded to their brand name, only 7 of 100 had the Twitter username corresponding to their brand name. Mr. Heels recommended that social networking companies work together to create a uniform username dispute resolution policy (UUDRP) analogous to the Uniform Domain Name Dispute Resolution Policy.

As of this post, there is no UUDRP.

There has been, however, quite a change in the control of the top 100 brand names on Twitter. As of November 8, 2009, 28 of those top 100 brands control their brand name on Twitter. While this is still a minority of the top brands, it is a 400% increase from less than one year ago. So what has changed?

Twitter has changed its policies

On January 14, 2009, Twitter posted “The Twitter Rules” on its website. These rules explained more clearly Twitter’s policies on impersonation of persons or corporations, name squatting, and trademark usernames. Twitter also updated its Terms of Service on September 10, 2009 (with a subsequent update on September 18, 2009) incorporating the Twitter Rules as part of Twitter’s terms of service.

The differences between the old terms of service and the new terms of service (including the Twitter Rules) are significant. The old terms banned “illegal and unauthorized purpose[s],” and retained the right to “modify or terminate Twitter.com service for any reason, without notice,” and “reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.” These terms did not explain when the rules would be enforced, nor the criteria Twitter would use to reach its decisions.

The new terms of service explain that “accounts that are inactive for more than six months may . . . be removed without further notice” and that “you will not . . . sell” Twitter usernames. These rules have been augmented over time by more detailed explanations of Twitter’s trademark policy, name squatting policy, and impersonation policy, as well as the methods for reporting violations of those rules.

The increased detail and clarity in Twitter’s rules have allowed corporations to know their rights, and have given them the means to enforce those rights through Twitter’s internal processes. They have suspended a half-dozen usernames from the top 100 brands, and another 14 usernames will be released if Twitter bulk-releases inactive accounts as it has said it plans to do.

Is it enough?

There is, however, room for improvement. Twitter currently does not have a stated remedy for squatters who register a valuable brand name, have been active within the last six months, but are not impersonating the corporation that owns the brand or attempting to sell the name. While Twitter reserves the right to reclaim these names, it would benefit users if Twitter posted a clear policy of when and under what conditions it will reclaim those usernames. To date, Twitter has avoided Twittersquatting-related litigation (one case settled after Twitter transferred ownership of the username), but it’s not clear that the new rules will fully satisfy trademark owners, or what courts will do if asked to resolve a Twittersquatting dispute.

By Kyle Barnett and Gavin Snyder.

• Patently-O wonders whether the Supreme Court might take the opportunity afforded by the upcoming Bilski method patent case to scrap software patents, and states the socio-economic case for abandoning them.

• Engineering crime scenes: Lawyers.com considers a study which suggests that fabricating DNA evidence is far from science fiction.

• For an international perspective: European blogs Marques and Catch Us If You Can!!! weigh in on the use of “RNA” in trademarks as addressed by the European Court of First Instance (full text of the CFI’s judgment here).