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Judicial Watch?s Proposed Cybersquatting Claim Against Larry Klayman

By Enrico Schaefer

In a recent ruling by United State District Colleen Kollar-Kotelly, Defendant Judicial Watch, Inc. has been allowed to amend its counterclaims against Plaintiff Larry Klayman in what is shaping up to be a somewhat ironic judicial battle between the watchdog group Judicial Watch and its founder Larry Klayman who is no longer affiliated with the organization. The complaint and counterclaims are detailed and expansive.  You can read the complaint here.  Of interest to me is the recent effort of Defendant and Counter-Plaintiff Judicial Watch against Larry Klayman for cybersquatting.

Judicial Watch's proposed cybersquatting claim is brought under the Anti-Cybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). Am. Count. P P 106-16. To state a cybersquatting claim under the ACPA, Judicial Watch must allege that (1) JUDICIAL WATCH is a distinctive or famous mark entitled to protection; (2) Klayman's www.savingjudicialwatch.org domain name is identical or confusingly similar to Judicial Watch's mark; and (3) that Klayman registered his domain name with the bad faith intent to profit from it. 15 U.S.C. § 1125(d)(1)(A); Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001). Klayman does not contest whether Judicial Watch's federally registered trademark, JUDICIAL WATCH, is distinctive or famous, and the Court therefore assumes as much arguendo.

Mr. Klayman?s web site is clearly a ?gripe site?, unlikely to cause any consumer confusion.  Any visitor to www.savingjudicialwatch.org will immediately know that it is unaffiliated with the www.judicialwatch.org official web site.  Indicia that this is a gripe site include the fact that it includes the word ?saving? before the use of the words ?judicial watch.? Further, it is immediately clear from reading the text on the homepage that Mr. Klayman?s gripe site is of his own making and seeks to provide commentary concerning the alleged misdirection of the organization.  Here is a sample of the text on the homepage:

Now, I face an even bigger challenge -- Saving Judicial Watch! After I left Judicial Watch, we were betrayed by those who we had trusted to lead the organization. As explained in a complaint that I was forced to file, they lied to donors and supporters, misused their monies, failed to honor their agreement with me, and disparaged my name and reputation, all in a selfish power grab. And since I left, the energy, creativity and success of the organization has dwindled down to almost nothing, with one defeat after another in cases that I had filed to clean up corruption in government and the legal systems.

The district court judge allowed the amended counterclaim in spite of Klayman?s arguments that amendment would be futile could never survive a motion to dismiss.

Klayman further argues that Judicial Watch's cybersquatting  [*19] claim would not survive a motion to dismiss because Judicial Watch "did not, and can not, allege that Klayman was motivated by profit, let alone bad faith intent to profit." Pl.'s Opp'n at 12. Klayman posits that the instant case is "a far cry from the 'squatting' activity made illegal by the ACPA," and cites to cases in which courts have found insufficient evidence of the bad faith required under the ACPA where defendants registered websites that they used to complain about experiences with, or criticize, the defendants' companies. Id. at 11-12. To the contrary, Judicial Watch's proposed Amended Counterclaim specifically alleges that "Klayman registered, used and continues to use the savingjudicialwatch.org domain name with bad faith intent to divert supporters and donors from Judicial Watch's websites to the websites previously and currently accessible at savingjudicialwatch.org for Klayman's commercial gain and for purposes of promoting Klayman d/b/a Saving Judicial [W]atch." Am.  [*20] Count. P 111. On its face, then, Judicial Watch's proposed cybersquatting claim asserts that Klayman registered his website with an intent to profit by diverting funds from Judicial Watch to his own coffers.

I don?t find fault in the district judge?s allowance of the amendment.  However, Klayman makes a great argument.  The chance that this cybersquatting counterclaim will survive summary disposition is, from my point of view, zero.  Klayman?s site does not appear to contain any commercial content, provides no links to commercial web sites and offers no products or services for sale on the web site.  No one seeking the Judicial Watch would think that Judicial Watch is in fact sponsored by a web site that included the word ?saving? in the domain name.  In balancing Klayman?s right to free speech against the registered trademark rights of Judicial Watch, I am convinced that the court will ultimately dismiss Judicial Watch?s counterclaim on its face.  Judicial Watch will be left to its defamation claims, requiring them to establish that Klayman?s content is factually false. 

This case is not unlike the Taubman Co. v. Webfeats, 319 F.3d 770 (6th Cir. 2003) case, wherein the 6th Circuit Court of Appeals concluded that the domain name ?Taubmansucks.com? was purely an exhibition of free speech and the 2005 4th Circuit case involving the Rev. Jerry Falwell, wherein the Jerry Falwell ministries at www.falwell.com sued a gripesiter running www.fallwell.com.

Full post as published by AntiCybersquatting Consumer Protection Act Blog on December 12, 2007 (boomark / email).