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Annette's hollow victory
Antoun wins ownership of PaxtonHeraldOnline.com
PaxtonHeraldSucks.com is launched

On July 3, 2002 as the nation was preparing to celebrate our liberties, we received yet another tender epistle from Fred Antoun, Jr. acting as attorney for his mother.  Freedom of speech isn't something the 'Touns revere -- especially when they don't like the speech.

UDRP Documents

For those interested in viewing the legal documents involved in the domain name dispute, the following links are available.  Acrobat Reader™ is required to view the files.

Antoun's complaint
Our response
UDRP decision

Furious that we had rejected her demands to remove PaxtonHearldOnline.com and transfer the domain name to her (see: Antoun demands Website close), Fred Antoun notified  us Mommie Dearest had filed a complaint under the Uniform Domain Name Dispute Resolution Policy  (UDRP) to force the transfer.  The basis?  Trademark infringement.

Ignoring precedents in similar cases, the single panelist deciding the case ruled in favor of Antoun on August 21, 2002 giving her a hollow victory.

In his decision, Charles K. McCotter, Jr.  noted,  "Respondent's site is devoted to criticism, commentary and satire of The Paxton Herald.  From the disclaimers, graphics, and content of the web site, it is clear that the site is not affiliated with The Paxton Herald.  However, none of this distinguishing information appears in the domain name."

To support his decision McCotter cited Coors Brewing Co. v. Zike, FA 104202 (Nat. Arb. Forum Mar. 15, 2002) That decision held, "A domain name for the purpose of criticism or commentary must on its face indicate that any site to which it leads is not that of the trademark holder but is instead a site for criticism of or commentary on the trademark holder."

McCotter further notes, "No criticism is apparent from the domain name itself; it is not sufficient that the criticism may be apparent from the content of the site."

Thus, McCotter ruled in favor of Antoun.  She gets PaxtonHeraldOnline.com.  And we have moved the entire site to our new location on the web, PaxtonHeraldSucks.com a domain name which we owned for seven months before the decision was rendered.  Just in case.

Internet experts we've consulted note the decision could have gone either way.  In other cases (ex. www.northlandinsurance.com), owners of critical, noncommercial sites have been permitted to retain domain names, identical to trademarks of those they were criticizing.  Such is the weird world of UDRP proceedings.

Indeed, McCotter's decision has ramifications for free speech on the Internet and was selected as a "Case of the Week" by UDPRLaw.net, a website that tracks domain name disputes.

In order to win a UDRP proceeding, a trademark owner must prove all of the following:
 

that the domain name registered by the domain name holder is the same or confusingly similar to a trademark or service mark in which the trademark owner has rights;
 

that the domain name owner does not have a legitimate interest in the domain name; and,
 

that the domain name owner has used and registered the domain name in bad faith.

In deference to First Amendment rights of free speech, sites criticizing, protesting or parodying a trademarked entity may be permitted to retain the trademarked words in the domain name.  When certain conditions are met,  First Amendment rights trump trademark rights.  We think we met the requirements handily. (see: Trademark Infringement and Domain Names: Rules of Engagement)

Do we mourn the passing of PaxtonHeraldOnline.com?  Not really.  It has served its purpose and the new address obviates future claims of trademark infringement Antoun might contemplate. 

PaxtonHeraldSucks.com addresses McCotter's finding that "although the content of Respondent’s site may be entitled to First Amendment protection, his use of Complainant’s trademark in the domain name of his site is not so protected. Since Respondent’s domain name merely incorporates Complainant's trademark, it does not constitute a protectable, communicative message." 

PaxtonHeraldSucks.com certainly communicates our opinion of the shabby little tabloid and constitutes a communicative message protected under the First Amendment.

Besides, it's easier to remember and faster to type.

And just to make a point, while registering PaxtonHeraldSucks as a domain name, we registered another, non-trademarked domain name:  AnnetteAntoun.com.
 
Just in case you still haven't figured it out, this website is not in any way associated with or sanctioned by The Paxton Herald™ or its "publisher," Annette Antoun.