Search the name of Representative Pete Hoekstra of Michigan’s second district and PeteHoekstra.com is among the top results. But click on the site and you’ll encounter this tag line: “Dangerous, Polarizing & Bad for Michigan!”
How could a nine-term Congressman, a ranking member of the House Select Committee on Intelligence and now a candidate for the gubernatorial race in Michigan fail to register PeteHoekstra.com?
The domain belongs to Ben Padnos, who is originally from the Holland, Mich., area that Hoekstra represents. Padnos, now of California, is using the site for what he said in a phone interview is a campaign against Hoekstra’s gubernatorial campaign.
“Something as basic as owning your own name — I mean it’s like check box number one if you are running for political office,” Padnos said. “Anybody who doesn’t go out and do that, in my eyes there are serious questions of judgment.”
Hoekstra’s campaign did not reply to interview requests.
Cybersquatting in Politics
Critics of Padnos have accused him of cybersquatting, the registration of domain names (misspellings and all) in the hope of making money by selling the rights of the domains at inflated prices.
Cybersquatting, despite being outlawed in 1999 with the Anticybersquatting Consumer Protection Act, or ACPA, has had a history of hit-or-miss challenges in court, especially when it comes to political figures.
The ACPA is focused on trademarks that show up in domain names. It is rare for a politician to register their name as a trademark because, as Sarah Hinchliff Pearson, a
residential fellow at the Center for Internet and Society at Stanford noted in an email interview, it’s difficult to register a personal name because most names are not unique.
“Without a trademark registration, the politician has to prove they have common law trademark rights,” she said. “A name is not automatically a trademark. Rather, it must be used in commerce in connection with goods and services.”
Karl Kronenberger, a partner at the law firm Kronenberger Burgoyne, which specializes in Internet law, suggested that perhaps a politician like Arnold Schwarzenegger might be different in this regard because there may be products with Schwarzenegger’s name on them.
The problem for politicians is that if they are running for office, it’s pretty easy for someone to register a name and then engage in First Amendment activity. However, Kronenberger said there are some things that could cut against this argument.
“For example, if [the domain registrants] are placing ads on the site, if they are selling things on the site, if they are redirecting that site to a site that is commercial in nature,” Kronenberger said. “Then, their First Amendment argument is weakened.”
Ben Padnos says he is donating any money made on PeteHoekstra.com to charity, so ACPA litigation doesn’t appear likely. But there is another avenue for the Hoekstra people to pursue called the Uniform Domain Name Dispute Resolution Policy that the Internet Corporation for Assigned Names and Numbers (ICANN) settles with arbitration cases.
This route has challenges for the politician as well. Kim Davies, root zone services manager at ICANN suggested in a phone interview that, again, it really depends on the conduct of the person who has registered the domain and what they’ve actually done with that domain.
“If you are trying to pretend that you are someone else, or you are trying to use the domain to imply that you are officially connected to some other party, that might be adjudicated as something in bad faith,” Davies said.
Both avenues allow the politician to get ownership of, or shut down, the site if they prevail, but the federal court route is more costly and time-consuming. Padnos is likely again off the hook.
Paying For Your (Domain) Name
Back in 2002, Kathleen Kennedy Townsend, then Maryland’s lieutenant governor, made an unsuccessful bid for governor of Maryland. During her run, Townsend attempted to register domain names close to her name only to discover that several of the web addresses, including kennedytownsend.org and kathleenkennedytownsend.com had been snatched up by a man from Maryland.
Townsend took her dispute to the World Intellectual Property Organization’s Arbitration and Mediation Center (an approved ICANN arbitrator). The ruling held that the man could keep the sites because they were not connected with commercial exploitation.
In a recent post for the Hill’s Hillicon Valley technology blog, Sean Miller cited Republican web strategist David All who said it’s not impossible to get potentially-cybersquatting registrants to hand over important campaign URLs. But the process can be costly. Just ask Meg Whitman.
Whitman, the former head of eBay, is a Republican candidate for governor of California. Before she formally announced her candidacy, there was speculation that she would run. A man named Thomas Hall registered several of the Whitman-related domains back in 2008.
Whitman took her case to the U.N.‘s World Intellectual Property Organization to dispute Hall’s ownership of the URLs. Having failed at the U.N., Whitman pursued a legal case arguing Hall was cybersquatting.
To reclaim her name URLs, Whitman eventually reached a settlement and paid for the domains. Nancy Scola of TechPresident suggested that the whole process likely came at the expense of several hundred thousand dollars.
So if you’re an aspiring politician, registering your own name URL should be one of your first steps.
As Kronenberger noted, “It seems like a complete waste of money to pay an attorney to try to get a domain name.”
Correction May 26, 2010: This story originally reported that Rep. Hoekstra had served seven terms. He is serving his ninth.
Steven Davy is a freelance journalist, and freelance radio reporter/producer. He regularly covers the defense industry and security related issues for UPI. Additionally, he hosts a current affairs newsmagazine radio show called the Nonchalant Café Hour which broadcasts live in Kalamazoo, Mich. Steven recently created Exploring Conversations as a multimedia website examining the language of music for his graduate thesis project at Michigan State University.Related