David Hogg, a Parkland school shooting survivor, and gun control activist has registered the domain name shoptrumpsneakers.com, which refers to Donald Trump’s new sneaker brand. David Hogg redirected the domain name towards theshotline.org. The Shotline uses AI technology to recreate the voices of individuals who were victims of gun violence, allowing them to virtually advocate for gun law reform by calling representatives. Visitors can trigger these AI-generated calls to Congress. In other words, David Hogg’s action aims to leverage Trump’s sneaker launch for gun control advocacy.
Donald Trump has initiated about forty domain name-specific proceedings before the Forum and the WIPO Arbitration and Mediation Center with the aim of obtaining the transfer of names containing the term “trump”. Almost all of these decisions resulted in the transfer of the concerned domain names, with the exception of WIPO Decision D2007-0276 (trumpfurniture.com, rejected on the basis of no risk of confusion).
The issue of freedom of speech was only raised in the case Forum 99705, dating from 2001, concerning the domain name trumpplaza.net, and the transfer was ordered on the following grounds:
“The Respondent believes and asserts that he is in fact making a non-commercial “fair use” of the Domain Name. Respondent contends that it intends to use the disputed Domain Name as a web site providing criticism of Donald Trump and gambling in general. Respondent supports this contention by citing Bridgestone Firestone, Inc. v. Myers, D2000-0190 (WIPO July 6, 2000). In this case, the Panel found that the Respondent had free speech rights and legitimate First Amendment interests in the Domain Name <bridgestone-firestone.net> where the Respondent linked the Domain Name to a “complaint” website about the Complainant’s products. Nevertheless, the Panel is of the same opinion as the one expressed in Wal-Mart Stores, Inc. v. wallmartcanadasucks.com, D2000-1104 (WIPO Nov. 23, 2000) where the panel found that “[i]n Domain Name disputes it is critical whether the accused Domain Name itself signifies parodic or critical purposes, as opposed to imitation of trademark”. In the case at issue, the Domain Name itself does not signify a parodic or critical purpose (i.e <trumpplazasucks.net>). Furthermore, the Panel has researched the content of the site linked to the Domain Name, on a proprio motu basis. It seems that, as was mentioned by the Complainant (Supplemental Complaint), the Domain Name is linked to a critiquing site, which not only fails to mention Trump Plaza, it simply mentions the name “Donald Trump” in one innocuous sentence, which does not constitute evidence of the use being claimed by Respondent”.
Since then, third-party deciders have had the opportunity to refine the rules for determining whether the registration and use of a domain name identical or similar to a trademark fall under freedom of expression:
“2.6 Does a criticism site support respondent rights or legitimate interests?
As noted above, UDRP jurisprudence recognizes that the use of a domain name for fair use such as noncommercial free speech, would in principle support a respondent’s claim to a legitimate interest under the Policy.
2.6.1 To support fair use under UDRP paragraph 4(c)(iii), the respondent’s criticism must be genuine and noncommercial; in a number of UDRP decisions where a respondent argues that its domain name is being used for free speech purposes the panel has found this to be primarily a pretext for cybersquatting, commercial activity, or tarnishment.
2.6.2 Panels find that even a general right to legitimate criticism does not necessarily extend to registering or using a domain name identical to a trademark (i.e., <trademark.tld> (including typos)); even where such a domain name is used in relation to genuine noncommercial free speech, panels tend to find that this creates an impermissible risk of user confusion through impersonation. In certain cases involving parties exclusively from the United States, some panels applying US First Amendment principles have found that even a domain name identical to a trademark used for a bona fide noncommercial criticism site may support a legitimate interest.
2.6.3 Where the domain name is not identical to the complainant’s trademark, but it comprises the mark plus a derogatory term (e.g., <trademarksucks.tld>), panels tend to find that the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if such use is prima facie noncommercial, genuinely fair, and not misleading or false. Some panels have found in such cases that a limited degree of incidental commercial activity may be permissible in certain circumstances (e.g., as “fundraising” to offset registration or hosting costs associated with the domain name and website)” (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Jurisprudential Overview 3.0”).
This case law is the result of applying the rules governing the UDRP since the early 2000s by experts specialized in domain name disputes. In the event that Trump were to consider initiating a UDRP procedure against David Hogg, it is highly likely that the decision would be based on these principles.
However, the issue of freedom of speech is not the only one that deserves attention. The appointment of the third-party decider also needs to be considered. Indeed, given that the debate on gun control is one of the most divisive, it would be necessary to ensure that the third-party decider is not consciously or unconsciously biased in one direction or the other. In this particular case, a three-member panel seems essential.
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Other cases initiated by Donald Trump before the WIPO and the Forum:
- WIPO D2015-0844 (trumppalace.com, transfer);
- WIPO D2015-0478 (trumpestates.com, transfer);
- WIPO D2015-0077 (trumpcard.com, transfer);
- WIPO D2011-1946 (trumpwine.com, transfer);
- WIPO D2010-2220 (trumpabudhabi.com, trumpbeijing.com, trumpindia.com, trumpmumbai.com, transfer);
- WIPO D2010-1671 (trumpinternationalscotland.com, trumpscotland.com, trumpuk.com, transfer);
- WIPO D2010-1404 (trumplasvegas.com, transfer);
- WIPO D2007-1226 (trumplogos.com, transfer);
- WIPO D2007-0962 (luckytrumpcasino.com, luckytrump.com, magictrumpcasino.com, magictrump.com, trumpcasinogroup.com, transfer);
- WIPO D2007-0119 (trumpfurniture.com, denied);
- WIPO D2005-0918 (trumplending.com, trumploans.com, transfer);
- WIPO D2004-0429 (trumpice.com, transfer);
- Forum 1372504 (trumpink.us, transfer);
- Forum 106102 (donald.trump.name, trump);
- Forum 102803 (trumpcasino.net, sportstrump.com, sportstrump.net, transfer);
- Forum 102809 (trumpcasinoscentral.com, trumpcasinosonline.com, trumptajcentral.com, transfer);
- Forum 102643 (trumppoker.com, transfer);
- Forum 102814 (donaldtrumpcasino.com, trumpcasinosports.com, trumpsports.com, trumpoffshore.com, transfer);
- Forum 102810 (trumpcasinos.org, trumpcasinos.net, transfer);
- Forum 102614 (trumpcastlecasino.com, transfer);
- Forum 102516 (trumpplazasportsbook.com, transfer);
- Forum 101821 (trumpcardcasino.com, transfer);
- Forum 101572 (trumptajonline.com, trumpmarinacasino.com, transfer);
- Forum 101822 (trump-casino-online.com, transfer);
- Forum 101508 (clubtrumptajmahal.com, transfer);
- Forum 101509 (porntrumps.com, transfer);
- Forum 101578 (trumpsportsbook.com, trumpsportsbook.net, trumpssportsbook.com, trumpssportsbook.net, transfer);
- Forum 101814 (wwwtrumptaj.com, wwwtrumpcardcasino.com, transfer);
- Forum 101270 (wintrump.com, transfer);
- Forum 101533 (trumpcardcasinoonline.com, trumpcardonlinecasino.com, trump-card-casino.com, cyber-trump-casino.com, cybertrumpcardcasino.com, cybertrumpcard.com, cyber-trump-card.com, transfer);
- Forum 99706 (trumpscasino.com, transfer);
- Forum 100238 (trumpinternational.net, trumphouse.net, trumpland.net, trumpskys.com, trumpalace.com, trumplace.com, trumpair.com, trumptown.com, transfer);
- Forum 100174 (trumprewards.com, transfer);
- Forum 99707 (trumphotel.com, transfer);
- Forum 99718 (trumpbet.com, transfer);
- Forum 100177 (trumptrade.com, trumpbarter.com, transfer);
- Forum 99705 (trumpplaza.net, transfer);
- Forum 99715 (trumptajmahal.com, transfer);
- Forum 99679 (trumphotels.com, trump-hotels.com, transfer);
- Forum 99708 (trumphotelcasino.com, transfer);
- Forum 99713 (trumpplaza.org, transfer).
