Author Archives: Michael Froomkin

The latest slime group to come my attention is a 527 that calls itself moveonforamerica.org. They have a web page which promotes two commercials they claim to want to run on TV. They are both rather badly done in terms of production values, and both are race-baiting: one tries to Willy Horton Zerry — it even uses Willy Horton's picture — only trouble is, the guy they accuse Kerry of springing from jail appears to have been innocent of the crime Kerry got him off for. The other ad is all about equating Kerry and Al Sharpton.

Regardless of the lack of taste and ethics in their campaign tactics, these movenonforamerica.org guys seem ripe for a trademark lawsuit. Indeed, many business people consider cybersquatting and trademark infringement to be a form of theft or fraud, so we should expect the business community to condemn this organization (but don't hold your breath…).

Moveon.org has a federally registered trademark for,

Association services, namely a grassroots organization that promotes public awareness and participation regarding policy and legislative issues and leadership positions at community, local, state and national levels, that distributes newsletters, e-mail, faxes, and other written communications, makes phone calls, contacts news agencies, and places mass media advertising to promote public awareness of the status of policies, and legislation, and encourages members to take action through lobbying and other means to help shape public policy, legislation and leadership positions; and providing information to members and the public at large regarding issues relating to policies, legislation and leadership positions at community, local, state and national levels. FIRST USE: 20010900. FIRST USE IN COMMERCE: 20010900

The “moveonforamerica.org” name is being used in the same sector — indeed, clearly imitates moveon.org's tactic of putting commericals online before going to TV — and is almost certain to be found to be likely to cause confusion, deception or mistake. Were moveon.org to decide to sue, at the very least the moveonforamerica.org guys are likely to be found guilty of trademark infringement, which requires only a showing of “likelihood of confusion”.. I imagine that if it chooses to, moveon.org could get a federal injunction against their use of the name. It could probably also yank the domain name either in federal court or via the ICANN UDRP quasi-arbitration procedure for domain name disputes.

There are important and substantial First Amendment protections for political speech that trump the trademark statute. These include a right to parody, and a right to refer to an organization you are criticizing by its own name (“nominative fair use”). But none apply to attempts to create a confusingly similar name for yourself in the hope of confusing the public.