Ladner loses complaint against benladner.com
No 'bad faith'
Revised from the print edition
President Benjamin Ladner lost a complaint he filed against the student-run Web site benladner.com because the site did not register or use the site in "bad faith" and Ladner has no "legally protectable" rights to his name, according to the decision released Oct. 13 by the National Arbitration Forum, an international group that provides Internet domain name dispute resolution services as an alternative to the litigation process.
Ladner filed a complaint against benladner.com July 28 and a three-person panel was assigned to the complaint Sept. 29.
From the Arbitrators
To win the suit, Ladner would have had to prove that benladner.com is "identical or confusingly similar to a trademark or service mark" belonging to Ladner; that benladner.com owner and 2002 AU alumnus Ben Wetmore has "no rights or legitimate interests" in the name; and that benladner.com "was registered and is being used in bad faith," according to the Rules for Uniform Domain Name Dispute Resolution Policy.
In his complaint Ladner argued that his name is a trademark because he has used it since 1965 "in commerce in connection with educational services ... scholastic research services, publication services, public speaking services, etc." He also argued that benladner.com was "confusingly similar" to his Benjamin Ladner trademark and that benladner.com solicits money ranging from $10-$60 each month in advertisements and donations. Ladner's complaint stated that benladner.com has "intentionally attempted to attract, for commercial gain, internet users to the benladner.com website by creating a likelihood of confusion with the Benjamin Ladner mark."
Wetmore's response to NAF states that he "has always used the benladner.com site as a news and political publication" and that there has been no commercial gain from the site. Also, "that there is no evidence of likelihood of confusion among users" of benladner.com. Wetmore also argued that Ladner "enjoys no fame not immediately tied to his office or institution."
The panel decided that Ladner does not have trademark or service mark rights in his name because the "the rendering of a service which is normally 'expected or routine' based on one's underlying business or occupation is not a service." The panel also stated that even if Ladner did perform a service, his name would not identify "the source of any services" but serve "merely to identify an individual."
The panel also concluded that benladner.com is being used for "noncommercial criticism" of Ladner and is protected by the First Amendment. Although the site has received money, it is not considered commercial because it is used to operate the site, the panel ruled.
The panel added that, even if Ladner's name was a trademark, the site does not "tarnish" it because it does not associate it "with unwholesome or vulgar concepts, such as drugs, sex, or violence."
From the Site
Wetmore believes the decision sets a precedent. In his estimated 40 hours of research on Internet and intellectual property law, Wetmore said he found no "good precedent of a student publication critical of the person they've named themselves after."
However, Mark Goodman, executive director of the Student Press Law Center, pointed out the difference between arbitration and the courts.
"It doesn't set a legal precedent," Goodman said. "It does provide guidance to other arbitrators confronting similar circumstances in the future, but it's not legally binding in the same way a court ruling might be, in part because the facts of every circumstance is so different."
Wetmore said he was pleased that NAF ruled in benladner.com's favor.
"I'm glad they recognized some of the points that we made and I'm glad this seems to be the end of what's going on," he said.
Wetmore founded the site in the Fall 2001 semester "to serve the campus community by giving them access to resources, news on what's going on," he said.
Wetmore said he had "a pretty bad experience with student government," and first focused on that, but later realized that "fighting going on in student government really distracts from all the problems that happen on a university-wide level" and focused on the administration.
Wetmore said he named the site benladner.com because Ladner symbolized the University's "waste," The Eagle reported Sept. 13.
Wetmore, who now works at the Leadership Institute in Arlington, Va. said that the case was handled fairly.
"I felt that NAF handled it pretty objectively, pretty impartially. My interaction ... was always very formal, always over e-mail," he said.
Benladner.com Senior Correspondent Ed O'Keefe, who began working on the site with Wetmore, said that Ladner's complaint was expected.
"I personally always thought that something was going to happen at some point, and it did," O'Keefe, a senior CLEG and political science major, said. "I always worked with the thought in the back of my head that it would always come to a legal or quasi-official group deciding whether we could ... continue to run the Web site."
O'Keefe also said that he regretted that the complaint was not settled through an "open dialogue." The staff tried to contact Ladner multiple times but was always rebuffed, according to O'Keefe.
"Frankly, if he had agreed to have a dialogue about his work and our work, thousands of university dollars wouldn't have had to be spent on a fruitless attempt to shut us down," he said. "It says something about him and his leadership style and his priorities for the University."
Wetmore echoed O'Keefe, saying, "It's kind of telling that his first reaction is to go to court, which is, if I had a million dollars and if I knew that who I was going after had a dollar, that's probably what I'd do too."
Ladner paid $2,500 for a three-member panel to review the case, The Eagle reported on Sept. 13.
From the President's Office
David Taylor, Ladner's chief of staff, was unhappy with the result.
"We're disappointed in the outcome and basically disagree with the interpretation of the relevant law," he said. "It's simply confusing and misleading to use someone else's name to draw web traffic."
Taylor argued that Ladner is a figurehead of the University and that his name is inextricably tied to AU. "It would be appropriate for the University Council to engage in this. Benjamin Ladner's name is part of American University."
Whether or not Ladner will continue action against the site is "to be determined," Taylor said.
Goodman said it might be possible for Ladner to go to court.
"My guess is that [Ladner] might be able to bring some legal claim, in other words go to court, over this," Goodman said. "There may be a legal avenue available to him here, but I don't think it would be the legal equivalent of what he was trying to achieve in this arbitration."
Taylor said that he does not visit the site, though he is aware of its existence. At a Sept. 8 town hall event Ladner also said he has never read the site, The Eagle reported Sept. 9.
However, some are skeptical of this.
"I really find that hard to believe, and maybe he hasn't read it lately to see that we are legitimately a news source," said Sara Bularzik, co-editor of benladner.com and a sophomore print journalism major.
The site "used to be a more gossip and slander-driven site," according to O'Keefe, but it has since evolved to report more campus news.
Bularzik said that Ladner's complaint did not affect the content of the site, though it did delay the staff in making promotional materials.
O'Keefe said one way the complaint affected the site is by driving more traffic to it. The complaint received attention from The Washington Post, The Eagle, George Washington University's The Hatchet, and the Georgetown Voice.
"This just plays into the lunacy of Ladner's argument," O'Keefe said. "Anytime that Ladner shines light on Wetmore and their feud it just drives more people to the site and allows students to see what we do and it doesn't seem to help Ladner in any way."
From the Students
Some AU students had strong feelings about the complaint, though others professed ignorance about the case.
"I don't understand why Ben Ladner didn't do something sooner," said Erika Zapecza, a sophomore in the School of Communication.
Lauren Zoebelein, a sophomore in Kogod, agreed. "The site was developed years ago, why didn't Ladner pick up on it?"
Other students felt differently.
"That's the law and there's nothing you can do about it. If Ben Ladner is that worried, he should put up his own site," said Lizzy Charlick, a junior in Kogod.
Eagle Staff Writer Dave Hodges contributed to this report.