Rape, Murder, Rumor, and Rhetoric: The Strange Case of Glenn Beck, Part 3

(Note: This post is the third in a three-part series exploring First Amendment issues, trademark disputes, and certain rights of celebrities and public figures. We wish to stress to our readers that this article is in no way meant to endorse or oppose any political view.)

The first installment of this series covered the factual background of the curious ICANN case between Glenn Beck and that pesky domain name, glennbeckrapedandmurderedayounggirlin1990.com (the R&M domain), which was registered by Isaac Eiland-Hall.  The second installment discussed what Glenn Beck must prove and whether his claim is likely to succeed.  This third and final installment takes on Eiland-Hall’s response.

The Response

Eiland-Hall’s response and his exhibits are actually quite funny.  He starts off by noting that “[o]nly an abject imbecile could believe that the domain name would have any connection to [Beck],” then continues:

We are not here because the domain name could cause confusion.  We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at [Eiland-Hall]’s website wondering, “where did all the race baiting content go?”  We are here because Mr. Beck wants [this] website shut down.  He wants it shut down because [Eiland-Hall]’s website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck’s very rhetorical style.

Eiland-Hall spends considerable time explaining the concept of Internet memes (a term relatively foreign to me until this case, and apparently foreign to many spell-checkers as well).  Essentially, an Internet meme “is a phrase used to describe a catchphrase or concept that spreads quickly from person to person via Internet, much like an esoteric inside joke.”  Only in a case such as this could an attorney write phrases like “Mr. T Ate My Balls,”  “Leeroy Jenkins,” “Hitler hates Kanye West,” and “Every Time You Masturbate, God Kills a Kitten.”  The response also refers back to historical memes, such as the one about Richard Gere and what he allegedly did with gerbils.

For the balance of his response, Eiland-Hall defends the sanctity of parody and criticism.  While he might have been better served by pointing out the obvious flaws in each of Beck’s arguments, Eiland-Hall makes valid points in defense of his R&M domain registration.  For instance, he points out that there are two prevailing views in cased decided by WIPO [the group Beck selected to arbitrate his ICANN claim] regarding the use of a trademark in a domain name for purposes of criticism:

1. The right to criticize does not extend to registering a domain name that is identical or confusingly similar to the owner’s registered trademark or conveys an association with the mark.
2. Irrespective of whether the domain name as such connotes criticism, the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if the use is fair and non-commercial.

Eiland-Hall suggests that the first viewpoint should only apply if the WIPO arbitration panel concludes that the U.S. Constitution does not apply and thus, Eiland-Hall’s First Amendment right to free speech is not protected.  However, even if this view is adopted, Beck has still failed to make out a case because he has not shown that the R&M domain is confusingly similar to the GLENN BECK mark, or that it conveys an association with the mark.

If the first viewpoint is adopted, Eiland-Hall characterizes the analysis as it is described in other common law countries, namely, the U.K. and Canada – the “moron in a hurry” test.  While the U.S. characterizes it in a more mundane fashion – “an ordinary consumer using reasonable care” – the test is the same.  Would any sensible member of the public be confused by Eiland-Hall’s use of Beck’s trademark?  If the only person who would be misled by the R&M domain is a moron in a hurry then there cannot be infringement and, thus, Eiland-Hall should be permitted to keep the domain.

Eiland-Hall goes on to point out that the second viewpoint should be adopted because all parties are U.S. citizens and the website is hosted in the U.S.  He cites to Xtraplus Corporation v. Flawless Computers, in which it was concluded that panels resolving ICANN disputes pursuant to the Uniform Domain-Name Dispute Resolution Policy (UDRP) have “repeatedly stated that a U.S.-based website engaged in noncommercial criticism of a U.S.-based trademark owner’s activities enjoys First Amendment protection, even if the domain name incorporates the complainant’s trademark.”  Eiland-Hall cites several other decisions in which cancellation of a domain registration was denied where the website was used for purposes of criticism, or even where a criticism site was planned.

Eiland-Hall repeatedly draws attention to Glenn Beck’s general disdain for international tribunals and international law, particularly because, in Beck’s view, they erode fundamental freedoms cherished by Americans.  Eiland-Hall’s attempts to play on the irony of Beck’s decision to shutter the R&M domain in an international forum rather than bringing suit in a U.S. court are strategically justifiable.  Because ICANN panels are not required to consider the First Amendment in their decisions, and because Beck is such a proponent of the freedom of speech, Eiland-Hall has asked Beck to expressly agree that the First Amendment is applicable to this case.  By doing so, Eiland-Hall greatly increases his already significant chances of success.

Conclusion

Beck has done a very poor job of arguing his case.  He does too little to support his positions and relies on decisions that are not truly favorable to him.  On the other side, Eiland-Hall may have spent too much effort pointing out the perceived hypocrisy of Beck’s choice of forum and defending the legitimacy of his own actions, when he might have been better off investing more time explaining why Beck failed to properly make his case.  Regardless of one’s political persuasions, however, a victory for Beck would deal a serious blow to the First Amendment.  It would allow any person or company whose trademark is incorporated into a domain name to shut dissenters down, stripping them of their Constitutional right to protest.  Such wholesale censorship should not be tolerated under any circumstances, even in international tribunals.

(Part 1 is here, part 2 is here.)

Update:  TBTS learned shortly after publishing this series that a decision had been rendered in the Glenn Beck ICANN dispute, and the victory went to Eiland-Hall!  The panel took a rather tortured path in reaching its decision, concluding that the R&M domain was, in fact, likely to cause confusion.  However, it ultimately decided that Eiland-Hall had a legitimate interest in the domain for purposes of Free Speech.  Funny enough, despite winning the case, Eiland-Hall sent a letter to Beck shortly after the decision and granted him all rights in the R&M domain.