Whether the Daily Caller’s plans to build KeithOlbermann.com into the Internet’s premiere Olbermann-criticism site is a good publicity stunt is not in question. It is. It’s all over the Internet, and Olbermann will probably complain about it on his show tonight. The back-and-forth will result in lots of attention for both parties involved. That doesn’t mean it’s a smart legal move, though, as Olbermann suggested earlier. In fact, according to Enrico Schaefer, founding attorney of Traverse Legal, a law firm specializing in cybersquatting and domain-name disputes, Olbermann would probably have little trouble becoming master of his domain.
“There’s always room for some debate on this kind of stuff,” Schaefer told us. “But the reality is that Keith Olbermann has got strong trademark rights in his name — a show called Countdown With Keith Olbermann, with his name used as a brand — and therefore anyone that registers a domain name in bad faith, or a personal name of a famous individual who has trademark right, is potentially liable for up to $100,000 in damages, plus attorney fees.”
“But wait a second,” we ignorantly inquired, “What about, you know, freedom of speech? Doesn’t the First Amendment allow us to criticize public figures however we damn well please?” Not always. Some “gripe sites,” as they’re known, are okay, if they “have no financial stake, no positive benefit that they receive. They just have something to say and they’re going to say it,” Schaefer explains. But “the moment that you start to make money or derive a benefit for your business, you lose a whole layer of First Amendment protection.”
So what’s Olbermann’s next move? Schaefer says he has three options of varying intensity. On the lower end of the spectrum, he can send the Daily Caller a cease-and-desist letter, giving it five days to hand over control of the website and possibly pay him damages. The middle ground would be forcing it into binding arbitration, which the Daily Caller would have to comply with under the Uniform Domain-Name Dispute-Resolution Policy, which applies to anyone in the world who registers a domain name. Or he could sue the Daily Caller in federal court under the Anticybersquatting Consumer Protection Act. “I think the Daily Caller would likely lose this across the board,” Schaefer predicts.
Not that he has much sympathy for Olbermann. “People who don’t register their domain name and the variations of their name, they’re just asking for it,” he says, incredulously. “The concept that someone as famous as Keith Olbermann could have gotten this far in life without registering KeithOlbermann.com is shocking.”