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Cybersquatters Using BrettKavanaugh.com to Smear Justice Kavanaugh Likely Doing It Illegally

In recent days, there’s been quite a bit of coverage about the acquisition of BrettKavanaugh.com. According to a WhoIs search on the domain, BrettKavanaugh.com was originally cybersquatted three years ago, on September 10, 2015, but was left unused until recently before finally being turned into a pseudo resource site for survivors of sexual assault, with a large black and white photo of the Supreme Court underneath the heading, "We Believe Survivors."

The domain is owned by Fix The Court, a supposedly “non-partisan grassroots organization” that is seeking to “reform” the Supreme Court, with its most prominent objective being the implementation of term limits.

Here is a statement from Fix The Court executive director Gabe Roth from earlier this month:

Three years ago, I bought a handful of URLs that I thought might be useful in any forthcoming Supreme Court confirmation battles. Included were BrettKavanaugh.com, .org and .net.

Today I am redirecting those three to a landing page with resources for victims of sexual assault.

I believe Dr. Ford. I believe Prof. Hill. I also believe that asking for forgiveness is a sign of maturity and strength, not weakness.

Watching the White House ceremony last night and listening to the President again cast doubt on the veracity of Dr. Ford’s claims, while not hearing a word of contrition from the newest justice, was difficult for many Americans who have experienced sexual misconduct firsthand.

Fix the Court stands with you. We believe you, and we support you. And if you seek additional resources, you can go to BrettKavanaugh.com.

Clearly, Roth gave up all pretenses of his organization being non-partisan by abandoning the ideals of due process and innocent until proven guilty and using his group to perpetuate the falsehood that Brett Kavanaugh committed attempted sexual assault.

Creating a website to provide resources for victims of sexual assault is certainly an admirable thing, but using the name of Brett Kavanaugh, with the undeniable implication that he is a sex offender, is wrong. The contradictions, holes, and lies of Christine Blasey Ford’s testimony have been well documented. This site, by using Brett Kavanaugh’s name, is not about helping real victims of sexual assault, but about trying to undermine Brett Kavanaugh’s credibility.

The good news here is that Brett Kavanaugh can legally get the domains back. Domain name disputes have happened in the past, and there are plenty of precedents to support Kavanaugh should he, or someone on his behalf, attempt to take control of those domains back from Gabe Roth and Fix The Court.

There is a process established by the Internet Corporation for Assigned Names and Numbers (ICANN) called Uniform Domain-Name Dispute-Resolution Policy (UDRP) to resolve disputes regarding internet domain names. According to Harvard University, "To prevail in a domain name dispute under the UDRP, the complainant must prove that the disputed domain name 'has been registered and is being used in bad faith.'"

ICANN defines bad faith as follows:

b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

4(b)(i) is not applicable here, nor is 4(b)(iii), but the remaining items are clearly applicable. Fix The Court has been exploiting its acquisition of BrettKavanaugh.com on social media, and even links to its primary site where they accept donations. Fix The Court’s acquisition of BrettKavanaugh.com is undeniably being used in bad faith. PJMedia reached out to Fix The Court for comment, but they did not respond.

Despite their likely illegal cybersquatting, Fix The Court could still use Kavanaugh's name in another way. This 2008 article on Slate explains the limitations of cybersquatting.

The First Amendment makes it legal to grab even a famous person’s domain name in some situations: You might not get Hillaryclinton.com, but you could register Ilovehillaryclinton.com if you’re planning to use it for nonprofit political speech. You may also be able to use an established name if you’re setting up your own, unrelated company. If the domain name for Delta Airlines expired and you bought it up for your competing airline, that would be against the law. But if you were promoting a very different kind of company—Delta Plumbing, for example—then you’d be within your rights to use Delta.com. As long as you’re not profiting off a person or company by misrepresenting them, you’re probably OK.

So, while Fix The Court does not have the right to own and exploit BrettKavanaugh.com, .org, .net, etc. etc. they could still incorporate his name into another domain name and, depending on the circumstances, be protected by the First Amendment. Here’s another example. It would have been in bad faith to register ChristineBlaseyFord.com and turn it into a resource website for men falsely accused of sexual assault. In that case, Professor Ford would be well within her rights to file a complaint and take control of the domain. But, ChristineBlaseyFordIsALiar.com (still available as of this writing if you’re interested) would likely be covered by the First Amendment.

While I don’t suspect Brett Kavanaugh himself will do anything about the domain that is using his name in bad faith, someone acting on his behalf should file a complaint to get those domains back.

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Matt Margolis is the author of The Scandalous Presidency of Barack Obama and the bestselling The Worst President in History: The Legacy of Barack Obama. His new book, Trumping Obama: How President Trump Saved Us From Barack Obama's Legacy, will be published in 2019. You can follow Matt on Twitter @MattMargolis