Domain Name Battlefield: The Strength and Weakness of a Low Profile
by John Skinner
I will describe a weakness in domain name ownership patterns of some organizations, and my experience with the process which governs domain name disputes: the UDRP process. I will illustrate this with the organization Focus on the Family (FotF). My story is not legal advice.
You might remember FotF as a fundamentalist Christian media empire from the 1970s to the 1990s. It is still around, but less visible. It has transformed into a powerful lobbying organization. It advocates against (((LGBTQ rights))), (((legal abortion))), (((sex education to children))), and other kinds of jewish subversion, trying to outlaw all of it at every level of government. To this end, FotF operates a jumble of sub-organizations with names like Family Policy Alliance, Family Policy Foundation, The Family Foundation, The Family Leader, Family Research Council, etc. As you can see, these names are all pretty similar and forgettable. They are simply the word "family" surrounded with vaguely official-sounding terms.
Why do they use these generic names? According to FotF, it is because "coalitions can be more effective with a low profile."1 The cloud of vaguely-named organizations creates an impression of a grassroots movement, obscuring the coordinated lobbying effort. The names repeat the concept of family because FotF is attempting to monopolize that concept and link it to their regressive policies. They would transform "family" from an ordinary word into an ideological buzzword, a brand name. Focus on the Family attempts to control the idea of family in the same way that (((De Beers))) controls the idea of diamonds.
Though reprehensible, you can see the strategic strength of this naming system. Now we turn to its weaknesses.
Any brand is Intellectual Property (IP) that must be defended. A multiplicity of brands forms a large attack surface. Each brand must file paperwork, defend its trademark, and manage the way it appears in search results. This is a considerable burden. FotF seems to get its own brands confused sometimes, employing names and logos in unexpected combinations. Possessing a network of brand names requires registering and renewing many domain names and maintaining many websites. Any failure to do so can be used against the brand network.
I registered the domain name FamilyPolicyFoundation.org in 2020. This domain name obviously should have been registered by the Family Policy Foundation, one of FotF's many subsidiaries. They neglected to build a website for this sub-brand, probably because it is a minor adjunct of a much more important sub-brand, the Family Policy Alliance, which is the largest hub of state-level anti-LGBTQ lobbying in the U.S. The Alliance is a major node in FotF's network, overseeing subsidiaries in 41 states. It is a 501(c)(4) organization which faces fewer lobbying restrictions than the Family Policy Foundation, a 501(c)(3) arm which is primarily used for fundraising. This pairing of organizations with different tax status is fairly common in the lobbying world, so the weakness exampled here probably applies elsewhere.
At my new domain name, I put up a quick raw HTML web page criticizing the organization, though I took care to make my criticism truthful and verifiable. I used some basic Search Engine Optimization (SEO) techniques to increase the page's visibility, but most of the SEO heavy lifting was done for me by the spot-on domain name and the lack of other material about the brand. My page began to crop up even for search terms related to other FotF brands.
As the web page rose in search relevance, the Family Policy Whatever realized their mistake in leaving their fundraising component exposed. They registered a flurry of variations on the domain name, the .net version and so on, in an effort to close the barn door after the horse bolted. They also made complaints to my domain name registrar, arguing that my website was infringing on their IP and contained "patently false and defamatory statements" (it did not). These complaints were forwarded to me anonymously because I had purchased a WHOIS privacy service offered by the registrar. The registrar took no action on them.
In January of this year, the Family Policy Foundation undertook a more serious step: they filed a Uniform Domain-Name Dispute-Resolution Policy (UDRP) complaint against me with the World Intellectual Property Organization (WIPO). A part of the United Nations, WIPO is headquartered in Geneva, Switzerland. The UDRP process it administers is the final stop for claims of trademark violations in domain names. WIPO has the power to crack WHOIS privacy protection, finding your real name and home address if you were truthful about those things when you registered your domain name. If you were not truthful, this may count against you during the UDRP process. The process also gives complainants the power to seize a domain name if WIPO finds in the complainant's favor, which it does in more than 95 percent of cases.2
I found the UDRP process surprisingly loose and brief. Except for one postal mailed notice, it takes place wholly via email. Each party is usually allowed only a single shot: one complaint, one response to that complaint a maximum of 20 days later. Then one decision, no appeals. You don't strictly need to hire a lawyer to file your response; you can (technically, maybe not a great idea) do it yourself. Or, you can get a lawyer from an unrelated jurisdiction if you want (I chose one from Serbia). In fact, you don't need to respond at all; a UDRP panel (the judges) will render a judgment even if you do nothing. In a free speech case like mine, some lawyers may be willing to represent a website creator pro bono; the Electronic Frontier Foundation pointed me to some. But I reiterate that I am not a lawyer, just a hacker.
Because WIPO and the web are international, UDRP panels are not responsible to any nation's legal system. Even the precedent of previous UDRP decisions doesn't count for much. "UDRP does not operate on a strict doctrine of binding precedent" according to the WIPO Jurisprudential Overview, the guiding document for UDRP panelists.3
The UDRP process considers three elements:
1.) The domain name registered by the domain name registrant is identical or confusingly similar to a trademark or service mark in which the complainant (the person or entity bringing the complaint) has rights.
2.) The domain name registrant has no rights or legitimate interests in respect of the domain name in question.
3.) The domain name has been registered and is being used in bad faith.
To make a successful complaint of trademark infringement and seize a domain, the complainant must demonstrate all three elements. The second element is of particular interest because that's where freedom of speech can come into play. Per the Jurisprudential Overview, "in certain cases involving parties exclusively from the United States, some panels applying U.S. 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." Note that a UDRP panel is not obligated to follow the First Amendment, but they can. It is up to the individuals who make up the panel.
Fortunately, the respondent (me) gets to nominate people for the panel. Because most UDRP cases are simple cybersquatting, my lawyer wasn't certain about the best nominees for our legitimate, noncommercial free speech case. I helped generate some candidates using a search engine to turn up cases that cited the relevant part of the Jurisprudential Overview verbatim: [site:wipo.int "some panels applying US First Amendment principles"].
Reading each case I uncovered, I selected those in which the panel actually used the First Amendment to find in favor of the respondent. Gathering the names of these panelists signed at the bottom of each decision, I searched for the panelists' other decisions, again using site:wipo.int plus each panelist's name. After a few iterations, I narrowed in on a couple of panelists with a solid free speech track record. Fortunately, my lawyer contributed his professional knowledge of those panelists as well.
In the end, our careful selection of free speech panelists didn't matter. Our panel found that we "mounted a serious challenge on the issue of whether Complainant has rights in that mark" under the first UDRP element. Basically, the name Family Policy Foundation is too generic and little-known to constitute a solid trademark. At the time the trademark was filed, the U.S. Patent and Trademark Office only accepted it into their Supplemental Register, which means it is inferior to normal trademarks found on the Principal Register. The Family Policy Foundation wasn't able to produce proof that people outside their own organization know the brand name.
The panel also noted "the joint or inconsistent use of its name, and related names" of other FotF groups, in particular Family Policy Alliance, The Family Foundation, and (no kidding) Family Policy Alliance Foundation. This sloppy jumble of brands cannot be held together.
Because the panel tossed out the complaint on the first element, they didn't write a finding on the other two UDRP elements, so they did noti touch the topic of free speech. I do wonder what they would have written on that topic, but I am not hopeful; the protections for speech in this process are weak and inconsistent.
Every UDRP panel is different, so you may not have the same outcome if you follow these same steps. But I hope I have given a useful idea of this important process that governs our lives on the World Wide Web, and that I have illuminated a weakness of organizations with intentionally confused and evasive public images.
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