Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

****sucks.com revisited

A friend asked me a question about a domain name he was considering registering but was hesitant because his proposed domain used the trademarked name of a corporate entity that his proposed website intended to criticize. The name of the domain name isn’t important to the minor point I want to raise (and I obviously won’t spoil), but  nevertheless it’s much different from, say, paypalsucks.com, which exists primarily to criticize Paypal. [For the record I have nothing against Paypal.]

I foraged up some links for my friend such as information about the UDRP arbitration process, which is basically an international mechanism to resolve domain name disputes between trademark holders and domain name holders. The most basic problem with the UDRP is that its decisions are more or less not binding–there’s little stopping the losing party from seeking a second bite at the apple in an actual court; and UDRP decisions are more or less all over the place.

That said, the trend has been toward a general consensus that sites using trademark protected terms are permitted to do so in instances where free speech is at issue, such as our paypalsucks.com example ( See also walmart-blows.com, bestbuysux.org, et al).

But what happens where the domain name at issue is owned by a competitor of the company that, er, sucks?  Such was the case where Valley Goldmine, an Arizona cash-for-gold company pursued a UDRP claim against valleygoldminesucks.com and won when the arbitrator found that the domain holder was a competitor, finding bad faith, and concluding:

Although cloaked in the mantle of a gripe site, Respondent’s website is quite clearly a platform for Respondent to cast aspersions on the reliability of a report that portrayed his company in a negative light and his competitor in a positive light, and to otherwise sling mud.

If UDRP decisions were consistent enough to constitute a real body of law I might worry that this decision might serve the ill purpose of nibbling at the fair use exception to trademark law. After all, in a fair use analysis commercial use is only one aspect–so should the fact that the *sucks.com domain name is owned by a competitor automatically preclude its protection? I’m not sure. While I generally applaud decisions that poke beneath the surface to get at shenanigans, such as here, I’d worry that this principle extrapolated could adversely affect legitimate fair use examples where a “commercial use” is also present (it needn’t not be a competitor).

And that’s as worked up as I’m going to get in attempting to find sympathy for any cash-for-gold company.