Politico Bent on World Domination

As part of an ongoing campaign to rid the world of little-trafficked blogs, Politico has expanded its campaign of cease-and-desist orders to the United Kingdom. Their attempt to shut down US conservative blogger The College Politico has thus far failed, but that hasn’t prevented them from reaching across the pond to stamp out Tory Politico, the UK’s 120,293rd ranked site.

Whether or not Politico has any legal leg to stand on, they might want to remember how the story of David and Goliath turned out for the big guy.

Reaction to Politico’s move has been swift and cutting. ABC News’ Jake Tapper tweeted:

hmmm. this brings new life to my cease and desist order to stop others from using the ABCs

Huffington Post’s Jason Linkins delivers a typically sharp takedown, surmising that visitors to Tory Politico “might accidentally end up (at Tory Politico) and become confused as to why your favorite Beltway press-release mill has suddenly become obsessed with Parliament and Gordon Brown and Torchwood or something?”

He also advises readers to “bookmark and start referring to (Tory Politico) as “Politico” immediately, just to make Jim VandeHei unhappy.”

While this is unquestionably a bad PR move for Politico, the legal justification for it arises from something called the Initial Interest Confusion Doctrine, which many legal experts see as deeply flawed, especially when applied to the internet. From Wikipedia:

One concern is that Initial Interest Confusion “lacks a rigorous definition” [7]. Additionally, some state that because Initial Interest Confusion can be found without the multi-factor analysis of likelihood of confusion, it represents “a short-cut to infringement, like a judicial game of ‘Chutes and Ladders’” [8] Another concern is the lack of consensus among courts about the applicability of Initial Interest Confusion [9]. Judge Berzon of the Ninth Circuit, in a concurring opinion in Playboy Enterprises, Inc. v. Netscape Communications Corp., asked whether the court wanted to “to continue to apply an insupportable rule”, referring to Initial Interest Confusion as discussed in Brookfield.

The question here is, as the wise Dr. Ian Malcolm would say, just because you can do a thing doesn’t mean you should do it.

In the case of The College Politico, which happened a few months ago, I reached out to Politico for comment, and they did not return one. However, I saw this coming for a long time before that.

I met that site’s proprietor, Steve Gutowski, at last year’s CPAC, and he explained that he had been using the “handle” TheCollegePolitico online since well before anyone had heard of The Politico, and that his site design and logo were in no way similar to Politico’s. Even so, I wondered if a site like Politico would mess with him anyway, reasoning that he would lack the resources to fight back.

I related the story to a Politico staffer later that day, and was told that my friend had better hope he stays off Politico’s radar, because they do, indeed, go after cases like these.

Of course, Steve’s still standing, but Goliath marches on. If they manage to scare just one tiny blog that uses the word “politico” in their name, I suppose that will be some sort of victory, and the price of a stamp is little incentive to stop.

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