Centerfield: Blog Name Theft

Very interesting brouhaha beginning over on the Center Field blog published by a group of self-described political centrists. (I had hoped it would feature commentary by Andruw Jones and Bernie Williams.) The question is the same one everyone has asked himself when registering for his first ever blog: What if someone steals a blog name?

Bob Cox of the Media Bloggers Association asked me to weigh in semi-officially on the Centerfield: Blog Name Theft colloquy. Here's what I wrote:

I am the general counsel of the new Media Bloggers Association, whose leadership has asked me to "weigh in" on this. This is not legal advice, nor have we researched the question, but because we're on Internet time the MBA has asked me to shoot from the hip from a legal / intellectual property point of view and get it out there.

My take is that under certain circumstances there could be a claim of (common law) trademark infringement under state and federal law for "blog name impersonation." A blog is a service; it is may be (depending on the facts) provided "in commerce." And "infringement" probably causes likelihood of confusion. The complaining blogger would have to prove that his blog has "secondary meaning" -- that the public (not necessarily the whole world, but the relevant "public") identifies the blog name in question with a particular source (i.e., his blog).

Doubtless the brand names in this field are worth a considerable amount of money, and I would not want to be the one to rip off "Instapundit" or "Daily Kos" with a similar blog name. Note that it need not be identical; even if it is similar, readers could well be confused by the implication of sponsorship, affiliation or origin. It is not necessary to have a gold-plated blog to make such a claim but, again, the less well-known the blog, the harder it will be to prove secondary meaning. Certain blog names may also be too descriptive to qualify for trademark protection. The question of whether personal names used as blogs may be trademarks is less clear.

The presumed goal of a court action would be to seek an injunction requiring that the name not be infringed. Few blogs would be able to prove monetary damages. Attorneys' fees are theoretically available in certain cases of purposeful trademark infringement, but are seldom awarded and even less seldom collectable.

Having said all this, I am not aware of any such claim that has been made in a court. The UDRP deals with domain names and registered trademarks only, so there is no recourse there. Most bloggers are, it appears, lawyers or law professors (this is a humorous aside), but those who aren't may have trouble affording counsel -- which is one of the reason the MBA was founded. Whether this or some other bloggers' group would want to be involved in adjudicating such disputes or representing offended bloggers remains to be seen.

Again, this is not legal advice for any particular person nor is it the position of the MBA, but it is our first take on the question.