Parody is a comedic genre, ancient in origin, designed to ridicule its target through imitation and witty exaggeration. Thus pomposity is deflated; unacceptable (to the parodist) social views debunked. At its least benign it is a political (blunt) instrument intended to make fun of the targeted views. It is also the cruelest form of expression when done with panache. In Sutherland Institute v. Continuative LLC, D2009-0693 (WIPO July 10, 2009) the parody is so cleverly performed that it confused even the target audience. The Complainant propagated its social views of family and normality through <sutherlandinstitute.org>; the Respondent countered with <sutherlandinstitute.com>. The imitation website copied the artwork and design of the Complainant’s website to make it appear the spokesman for the parodic views, but charged the language to express the opposite of the original. The parody website contained the following disclaimer:
Copyright © 2009 SutherlandInstitute.com All Rights Reserved. | This site is a parody of The Sutherland Institute, a Southern Utah based ‘think tank’ that tries to mask its ‘anti-gay agenda’ as a do good public policy and political organization. Obviously we are not affiliated with, endorsed or sponsored by the Sutherland Institute but we still love them anyway. Want to contact us? PO Box […] Salt Lake City, Utah 84125-0055.
Political speech is sacrosanct. The Panel concluded that the Complainant proved that the Respondent lacked rights or legitimate interests in the disputed domain name – that is, the domain name is not itself the subject of the parody – but failed to prove that the Respondent registered it in bad faith, referring to the content. An example of the domain name parodied is <hairywinston>, Harry Winston Inc. and Harry Winston S.A. v. Jennifer Katherman, D2008-1267 (WIPO October 18, 2008) (Respondent the proprietor of a ‘luxury pet boutique’).
There are several points of interest in Sutherland Institute, but one is that the Respondent did not submit a response. It was left to the Panel “to presume what Respondent would have argued had it made a submission, and to address the arguments that Respondent would have made, but didn’t. The Panel presumes that Respondent would argue that it is making a legitimate noncommercial use of Complainant’s service mark in the disputed domain name.” In other words, the Panel made the Respondent’s case.
With any set of facts other than privileged speech “presuming” what the respondent would argue were it present would exceed the Panel’s authority. Ironically, it may be that the Complainant put too much into the record; although it probably had no other choice. However, in presenting its grievance, and exposing its torment, it gave credence to the parody; and by its documentary submission (including the disclaimer) it stated the Respondent’s case. Thus, the material was at hand for the Panel to sort out the proper balance.
In dealing with political speech, the Panel found that the parody was “constitutionally protected.” It was “reluctant to use a basis for a finding of bad faith other than those expressly enumerated in the Policy.” This refers to the Complainant’s argument that the registration violated paragraph 4(b)(iii) of the Policy, disrupting the business of a competitor: “Perhaps in some very attenuated sense these two entities are ‘competitors in the marketplace for ideas’, but the Panel does not think this is what the Policy means when it refers to ‘competitors’.” Shades of The Reverend Dr. Jerry Falwell and The Liberty Alliance v. Gary Cohen, Profile.net and God.Info, D2002-0184 (WIPO June 3, 2002) (“Complainant is careful to avoid any suggestion that he has exploited his name for ‘materialistic’ or ‘commercial’ purposes.”). The Panel in Sutherland Institute concluded
If the right of political speech is to be interfered with based on Complainant’s service mark incorporated in Respondent’s disputed domain name, it is preferable that a federal or state court make that application of the concept of ‘bad faith’.
In other words, the decision to quash political speech is beyond the scope of the UDRP.
