Marc John Randazza

“ That’s the fun of a meme – it is an esoteric inside joke that will leave most people scratching their heads. To this day, nobody understands “Mr. Spock ate my balls,” but nobody thinks that a single statement in that sentence is true, and even if they did, nobody would think that it was an infringement upon Gene Roddenberry’s intellectual property rights.
That the joke may appeal most readily to audience members with an obscure, sophisticated, or warped sense of humor does not mean that Respondent’s registered domain is likely to be confused with Complainant’s alleged mark. ”

“ We spend millions of dollars at the movies, and aside from a very small minority, we don't mind if the word "fuck" is tossed about with great aplomb, and "fuck" in a movie certainly never cost anyone an Oscar. Sex and The City is more than a TV show, it is a phenomenon among young professional neo-feminist women. Yet nobody is scandalized by Women are for friendships, men are for fucking. ”

“ However, if the Examiner narrows the relevant marketplace to the internet, then "fucking" is certainly an impotent term. If the relevant marketplace is narrowed further to the world of adult materials, then fucking is downright bland. ”

“ We find that Mishkoff's use of Taubman's mark in the domain name is purely an exhibition of Free Speech, and the Lanham Act is not invoked. And although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act. ”

“ Unfortunately, despite the general wisdom among UDRP panelists, we find that occasionally they render decisions that make First Amendment champions cringe.
We are certain that despite our disagreement with Mr. Beck’s legal position, that all parties involved hold equal reverence for the First Amendment. Therefore, I have prepared a proposed stipulation that will ensure that no matter which panelist is assigned to this case, the First Amendment will illuminate these proceedings like rays of light from the Torch of Liberty. ”

“ Confusing comedy and confusing similarity are not the same. Complainant has proffered no evidence of the latter.
Criticism and nominative fair use of a trademark (or an alleged trademark) does not require that everyone is in on the joke.
The point is not whether the average Internet user would see Respondent’s domain name and automatically recognize the reference to Gilbert Gottfried. The point here, and the only narrow point the Panel should consider, is whether the average Internet user would be likely to come upon the domain name and believe it to be sponsored by Glenn Beck or his company. ”

“ God kills a kitten,” which was an internet meme that originated on the same website that spawned the Glenn Beck meme, Fark.com. See Wikipedia “Every time you masturbate ... God kills a kitten” (Annex D) . Memes are not supposed to be statements of fact, and audiences understand this.
Memes often involve famous people, and they are often unflattering. Richard Gere has never dignified the infamous “Gerbil story” meme with a response, even though the story is nasty and false, and it too has entered the culture as an irrepressible meme, even making an appearance in The Simpsons, Episode 183. ”

“ We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. ”

“ Respondent has not acted in bad faith (as that is defined under the Policy) , and Complainant has presented no evidence thereof. As noted in the Response, Respondent has no commercial intent. Instead, Respondent structured his web site as criticism styled as a parody, with the intent to spotlight Complainant’s hypocritical, manipulative, unsavory rhetorical style. The site – even the domain name – adopts Glenn Beck’s style to better expose it. The goal of this criticism would be that some readers might see Complainant’s hypocrisy. ”

“ There is no evidence that Respondent has registered and used the domain name for the purpose of selling it for profit. Respondent is not engaged in a pattern of cybersquatting. Respondent did not register the domain name to disrupt the business of a competitor, he registered it to pay homage to an existing internet meme that poked fun at Glenn Beck, to poke fun at Glenn Beck directly, and to express his political opinions. ”

“ View 1 states: “The right to criticize does not extend to registering a domain name that is identical or confusingly similar to the owner’s registered trademark or conveys an association with the mark.” ”

“ However, the Examiner can not escape the fact that if the word "fucking" has been typed into the Google search engine more times than "eating" "sleeping" or "dying", then the Applicant would not be incorrect in stating that "fucking" is not as scandalous or shocking as some may believe–especially not in the internet context. Lest the Examiner believe that these queries are out of context, the Applicant provides the following–a comparison between "fucking" and "making love." ”

“ Protected, fair use criticism, such as the parody of Glenn Beck in Respondent’s registered domain, cannot constitute the bad faith “disruption” of a business proscribed by the Policy. “Disruption” due to internet users being diverted can be bad faith. “Disruption” because a respondent exposes a Complainant’s hypocrisy is not.
Each of those reasons, taken alone or together, is sufficient to dispense with the case. For the sake of completeness, this Sur-Reply will also address the following issues:
5.Complainant’s Acquiescence. ”

“ To enter the channel of trade for the Applicant's goods and services, a potential consumer will have ample fair warning that he or she is about to enter a realm of sexual expression. The relevant marketplace—limited by the description of services—is essentially the "red light district" of the online media world. In that realm, websites deal with sexual topics in a graphic and often degrading manner. Women are depicted as being used by men, with an entire genre of adult entertainment (bukkake) devoted to images of men ejaculating on women, often on their faces. ”

“ There are 45 characters in the disputed domain name, glennbeckrapedandmurderedayounggirlin1990.com. Only nine of those characters comprise Complainant’s alleged mark. It is absurd to even imagine an Internet user searching for the term “Glenn Beck,” but accidentally typing in enough of the 45-character string to land on Respondent’s website. Even if a user somehow managed to stumble on the disputed site, it is equally absurd to imagine a user who would be confused about whether or not Beck is an owner, author, sponsor, or endorser of the site. ”

“ Beck cannot genuinely believe or reasonably assert that Respondent’s website will cause such confusion, there can be only one purpose to filing this complaint: as an attempt to silence a critic because he doesn’t like being criticized.
However, Mr. Beck’s lawyers are no fools. They are well aware that the First Amendment will give full protection to the Respondent’s website. Therefore, we find ourselves mired in a bogus “defamation” claim under the guise of this UDRP complaint. ”

“ Fuck (if we accept the Examiner's initial determination) is an offensive and vulgar reference to the act of sex. However, it can also be a reference to playful sex, used by even the most proper women to describe their favorite pair of shoes as "fuck me boots" or "fuck me heels." [7] In fact, a Google search for these terms (with and without hyphens) reveals a staggering number of personal blogs, written by young women, who brag about their "fuck me shoes." [8] To these women, it appears that "fuck" is neither vulgar nor offensive, but empowering. ”

“ Others joined in the fun, and the internet had its newest meme. See Fark discussion board (Annex F) . Immediately thereafter, “Glennbeck” became a verb on urbandictionary.com meaning “To rape and murder someone (especially a young girl in 1990) .” See Annex G. The meme spread to Yahoo Answers. See Annex H. And the next day, Respondent registered the domain name in order to memorialize the meme and to further the meme’s criticism of Beck. Both are legitimate interests and neither constitute bad faith under the Policy. ”

“ Beck will agree to this stipulation. It would be an interesting day indeed if Mr. Beck preferred to risk that a panelist would apply French law [2] to a case between two Americans over a matter of public discourse.
I recall that Beck publicly called Harold Koh, the Dean of Yale Law School, a “threat to American democracy” for his views on transnational law. Beck said of Koh:
he wants to subordinate the American Constitution to foreign and international rules. We see that in his attack on First Amendment free speech principles, which he finds opprobrious. ”

“ Beck really trying to convince this Panel that a website with a video spoof of the LEAVE BRITNEY ALONE meme, stating that “every time people stop mocking Glenn Beck, a baby ghost gets turned into a human being” would con the average into presuming that the website was set up by the Glenn Beck fan club? The logical pretzel that the Supplemental Filing creates defies any sense of reason. It is so irrational that one must wonder if it is yet another esoteric inside joke – an attempt by Mr. Beck to achieve the same level of memetic success as Pedobear. ”

“ Based on the above facts, and following the above-cited authority, the Examiner should find that "fucking" is generally accepted as a non-scandalous term. In the alternative, the Examiner could find that on the internet, "fucking" is not a scandalous or immoral term. And as a fallback position, the Examiner should find that "fucking" is neither scandalous nor immoral in the context of the relevant sub-market of online adult media. ”