Kavanaugh’s novel arguments don’t persuade panel.
As I predicted, film financier Ryan Kavanaugh lost a cybersquatting challenge he filed against YouTuber and host of the H3 podcast, Ethan Klein.
Klein created a website at doesryankavanaughlooklikeharveyweinstein.com that compares Kavanaugh’s looks to those of the disgraced Weinstein and discusses some of Kavanaugh’s history, including DUI charges.
Kavanaugh made some novel arguments in the UDRP he filed to try to get the domain taken down. For example, he argued that both parties are in the entertainment space, so they are competitive, and thus Klein is taking advantage of Kavanaugh’s mark. He also argued that the website was created for commercial gain because it embeds one of Klein’s YouTube videos, and he makes money when ads are shown on the videos. The video in question was of Klein criticizing Kavanaugh.
The World Intellectual Property Organization panel didn’t buy it:
Complainant also argues that Respondent generates revenue from Respondent’s Website and competes with Complainant in the field of entertainment services based on a link to a YouTube video of the H3 Podcast on Respondent’s Website. Complainant argues the YouTube video generates revenue from hundreds of thousands of views, but the YouTube video contains critical commentary on Complainant consistent with the Respondent’s goal to criticize Complainant elsewhere on Respondent’s Website, and is not prominently displayed on Respondent’s Website. In the Panel’s view, the YouTube video link evinces only a minimal, incidental degree of commercial activity, and Respondent’s Website is mainly dedicated to noncommercial criticism.
Kavanaugh also argued that Klein’s site about Kavanaugh receives more traffic than his own site. Not only was this based on a third-party site data system, it probably just shows weakness of the Complainant’s mark.
Finally, Kavanaugh didn’t say which of the items on Klein’s website weren’t true. Anyone who writes about controversial topics is used to hearing from people that claim their site is libelous or slander, but when they ask which of it is untrue, they never get an answer:
Complainant implies Respondent has defamed Complainant or tarnished Complainant’s Mark via “lies” on Respondent’s Website. But Complainant has not identified which statements made by Respondent on the website are “lies” or evidenced that any content at Respondent’s website is defamatory.
The panel found in Klein’s favor on the issues of Rights or Legitimate Interests and Registration and Use in Bad Faith. It didn’t make a formal determination whether the domain was confusingly similar to Kavanaugh’s mark. However, two of the panelists believe it was not confusingly similar because it’s clear that Kavanaugh does not operate it.
Novian & Novian LLP represented Kavanaugh and Fox Rothschild LLP represented Klein.
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