A Decade After Realizing It Can't Threaten A Critic Online, UCLA Returns To Threaten A Critic Online
from the don't-they-teach-lawyers-the-1st-amendment-any-more? dept
Back in the early days of Techdirt, we used to talk about legal disputes involving so-called “sucks sites” — i.e., web addresses that use a company or organizations’ name along with a disparaging adjective, in order to setup a website criticizing the company. In the early 2000s there were a bunch of legal disputes in which overly aggressive lawyers would threaten and/or sue the operators of such sites, claiming they were trademark infringement. Spoiler alert: they were not trademark infringement. There was never any confusion over whether or not the sites were actually endorsed by the trademark-holder (because the sites were criticizing the trademark holder.) Nor, in most cases, was there any commercial activity, which is necessary for a trademark violation.
For the most part, lawyers have finally learned that going after sucks sites is a bad idea and we don’t hear of as many cases these days. But they do sometimes pop up. The latest is particularly stupid, involving the University of California, Los Angeles (UCLA). The details are laid out for you nicely by Adam Steinbaugh of FIRE (the Foundation for Individual Rights in Education), an organization focused on protecting free speech on campus.
You see, UCLA had done this before. Way back in 2009 it had threatened a critical site run by a former student:
In 2009, the university sent a letter to former student Tom Wilde, alleging that his website’s domain names, ucla-weeding101.info and .com, infringed on the university’s trademarks and amounted to a criminal act under California Education Code Section 92000, which purports to authorize public universities to police virtually any use of their name or acronym. FIRE wrote to UCLA in 2009, explaining that the First Amendment protects “cybergriping” websites and noting that the university’s purported authority under the California Education Code was contrary to the university’s obligations under the First Amendment.
After some hesitance, UCLA backed down.
But, as you likely guessed, they’ve done it again. And, here’s the real kicker: UCLA sent a letter to the same guy over the same website. As Steinbaugh notes, the latest letter is less threatening and more friendly, talking about giving Wilde a “friendly reminder” and asking as a “courtesy” for him to “remedy” his claimed misuses of UCLA’s trademark and… building images (?!?). FIRE again took up the case, reminding UCLA of what happened a decade ago and asking it to retract the letter. Incredibly, UCLA refused to do so, saying that Wilde was creating confusion by using similar images and design. However, a quick comparison of the two sites suggests that no one is going to be confused that the one on the left is officially a part of the one on the right:
UCLA also had claimed in its new letter that it sent that in response to “an inquiry” about Wilde’s site. FIRE filed a public records request to find out who the hell “inquired.” Turns out: it was a UCLA staff member on the external affairs team who sent an email pointing to the site and saying:
Grumpy former student has created this FB page and website…was thinking that the Royce Hall image and use of UCLA in the domain name might both be no-nos.
This was under the subject “protecting the brand.”
Right. So this wasn’t someone confused about the site. It was someone who thought that they could go after a site that was critical of UCLA by abusing trademark law — something that has long been a non-starter, and which is an insult to the First Amendment.
You know how you protect your brand? By not threatening critics with a potential legal attack over First Amendment protected speech. And, also, not doing that twice.