A decision is still pending over an Internet domain name dispute filed by AU President Benjamin Ladner this summer with the National Arbitration Forum (NAF) against the student-run Web site benladner.com and the site's owner Ben Wetmore over ownership rights of the domain name.
The NAF is an international forum that provides dispute resolution services as an alternative to the litigation process and deals with domain name disputes under the Uniform Domain Name Dispute Resolution Policy.
In the complaint, Ladner claims that the site's name is confusingly similar to that of his "trademark" name Benjamin Ladner and claims he is a public figure whose name is linked with education, publications, research and charity. It also states that the domain name was registered to take advantage of Ladner's "good will and to intentionally divert Internet users" to the site by "causing initial interest confusion."
The complaint also states that the intention of the site was to "capitalize commercially on the good will" of Ladner and divert Internet users to the site for the purpose of deriving income from advertising sales through donations and charging businesses $30 to $60 for monthly advertising and $10 to $20 for campus and non-profit organizations.
It also says that the disclaimer at the bottom of the page, which reads, "This site not supported or endorsed by Benjamin Ladner" is not effective in its attempt to avoid confusion and may cause Internet users to mistakenly believe that the site is "associated, affiliated and endorsed" by Ladner.
At a town hall meeting last week, Ladner reaffirmed his position saying that the Web site misrepresents both himself and the University and reiterated that he did not file the complaint because of any criticism he may have received from the site.
"I have been criticized by The Washington Post, foreign leaders ... benladner.com, get in line," Ladner said. He also said that he never visited the Web site.
Alumnus Ben Wetmore, who founded the site in December 2001, said he still believes that Ladner does not want any criticism and that it wasn't surprising that Ladner never read any of the content on the Web site.
"He's so distantly attached, it wouldn't surprise me [that he's never been on benladner.com]," Wetmore said. "I think part of the problem is that he doesn't have to keep up with what's going on."
Wetmore initially started the site and named it after the president because "[Ladner] was emblematic of the waste, misappropriation of money [and] the loss of faculty," Wetmore said. "The buck stopped with him."
David Taylor, Ladner's chief of staff, said that the legal action was only a complaint, not a lawsuit.
Taylor said confusion does exist and Internet users from the outside community could easily mistake the site as the president's Web page. He also said that one of their other concerns is related to the site's commercial profits.
However, Ed O'Keefe, the site's senior correspondent and former editor in chief, says that 5 percent of the organization's time is focused on advertising, while the rest of the focus is on reporting the issues on campus.
"[Ladner] alleges the site adds commercial intent to profit from his name, legally it looks like that, but literally we do not," O'Keefe said.
Wetmore disagrees with both Ladner and Taylor. He says the site's traffic comes from the campus community and just by looking at the content and the disclaimer that the organization is actually not supported or endorsed by the president. He also adds that he thinks Ladner is not famous and well known enough in academia although Ladner claims he has been recognized by newspapers like The Washington Post and USA Today as well as broadcast networks such as C-SPAN and CNN.
"It's not about the content and it's not a free speech issue," Taylor said. "We're not preventing them from any name [they choose]; just don't call it benladner.com."
The Arbitration Process
Ryan Kaatz, manager of domain dispute resolution with NAF, says the forum has handled more than 4,000 cases like this since it started the process in 1999. He also said that the forum acts as a third party that challenges dispute resolution through a contractual deal between register and registrar.
"It was set up to be efficient, less expensive and quicker than the courts," Kaatz said.
According to Kaatz, the process takes less than two months, and the panels are made up of retired judges and experienced lawyers who have a background in intellectual property.
Attorney Sherri N. Blount of the Morrison & Foerster law firm filed the claim on Ladner's behalf. Ladner paid $2,500 for a three-member panel to review the case. The panel comprises honorable Paul Dorf of Baltimore, Md.; Charles K. McCotter of Newbern, NC; and Jordon S. Weinstein of Alexandria, Va.
"It's a shame and a disappointment," Wetmore said. "He's spent a ton of money - at least $2,500 - when he could have done something better with that money like ... [increase] faculty salaries ... scholarship money ... but I guess your priorities get a little out of whack when you become a millionaire."
Essentially, the process is that a person files a complaint (Ladner) with the Internet Corporation of Assigned Names and Numbers (ICANN, an organization that owns most of the domain names that include .COM, .NET, .ORG). Complainants are then referred to organizations such as NAF, which acts as the intermediate. The respondent (Wetmore) then replies to the complainant's allegations and defends the motivations of the site by preparing a document and sending it to the forum for the panel. From there, the panel looks at both written arguments and makes a decision.
Kaatz says that a panel could choose an in-person argument, but it rarely does so.
"The domain dispute is still very new," Kaatz said.
Internet Domain Name Dispute
Under the USDP, several factors are considered in domain name disputes. One issue is "bad faith," which would include a person buying a domain name to be used for commercial purposes. Another consideration is "fair use:" whether the owner has legitimate rights to the name and trademark rights. Most cases, though, have dealt with parody and satire Web sites and cybersquatters, people who purchase domain names to sell back for profit.
There have been several cases involving public figures and domain names. Madonna and Julia Roberts have both won cases because bad faith was established, while Alanis Morisette and Bruce Springsteen have lost domain name cases.
One case where the complainant lost involved media mogul Ted Turner in 2002. Turner lost a case against the registrant of TedTurner.com when a panel said that Turner had no common law rights to his name as a trademark despite the site's intention of bad faith, according to UDRPlaw.net. The panel based its decision on an earlier 2002 domain dispute case involving television evangelist Jerry Falwell, in which the respondent won because his satirical site did not have a commercial gain.
However, in a 2004 case involving Falwell, a Virginian judge ruled that a gay activist must stop using a variation of Falwell's name in his Web site. According to The Associated Press, the judge said the name of the site was nearly identical to the registered trademark that could confuse Internet users. The judge also said that the domain owner wanted to divert people from Falwell's official Web site with "the direct intent to tarnish or disparage" and sought to make a profit by selling a book on the site.
Adam Goldstein, media legal fellow at the Student Law Press Center, said he agrees with Kaatz that domain name disputes are still new and that people know very little about them.
Goldstein said that these types of cases generally tend to go to the person whose name is being rightly or wrongly used. In this case, Ladner would most likely win, he said.
However, he says, the more public a figure is, the more the more lattitude people have to use his name. Goldstein used an example with President George W. Bush. Because his name is so widely known, there are many sites about him, both negative and positive, and he would have a hard time stopping someone from using his name. If a person is less well-known, it is easier to contest the name, Goldstein said.
However, Georgetown University law professor Julie E. Cohen said that Ladner may not be famous enough to win the case, according to a Sept. 12 Washington Post article.
"Where someone is much more famous, it would be easier to say this name should be considered similar to a trademark," she told The Post.
Goldstein says that three things that could happen: The respondent could win and the complaint would be dismissed; or the name is transferred to the complainant, or the name is cancelled; one of the parties may go to court while arbitration is in motion, which could stall a decision, or the courts could wait for the outcome of the arbitrator's decision.
Goldstein said that if he owned the Web site, he might try to go to court because the U.S. courts have a record of enforcing First Amendment rights. The NAF, an international forum, has international members, so depending on the person assigned - someone who was international may not be regarded as strongly.
"There isn't a whole lot of consistency in these cases, it all depends on who is hearing the arguments and who they believe," Goldstein said.
Benladner.com Still Confident
Wetmore is confident that the news organization will prevail over such factors in the dispute over bad faith, saying that the site's intention was never merely to criticize Ladner but rather to inform the student body of various university matters that may include some criticism of the president.
"We'll prevail in the analysis of fair use, and it's clear if you read our mission statement," Wetmore said. "We're offering news, analysis and information."
If Ladner does win the claim, Wetmore says it will be a rocky transition at first.
"It'll be a huge inconvenience and a major setback," said Wetmore. "I hope it doesn't ... and it won't come to that, but if it does at the end of the day, we'll overcome it and [people will] judge us by the quality of our content."
Meanwhile, O'Keefe, who said he sympathizes with Ladner, still encourages the president to read the site.
"While we all go to AU, we all have different interests ... places we live ... backgrounds ... but what we all have in common, is that he is our president," O'Keefe said. "Our site acts as that one place people can go - students, staff and faculty."
According to O'Keefe, if Ladner were to go on the site, he would find that 90 percent of the content has nothing to do with him and that it's about campus life, student concerns and campus figures.
"We were very critical of him professionally and personally when we started, but we aren't like that anymore," said O'Keefe. "Not reading the site very much disables his ability to understand the site"
