“Our client is . . . prepared to resolve this matter amicably and without pursuing its claims for damages, but only if you immediately comply with its demands.”
A common paradox of a form demand letter – offering an “amicable” resolution to a dispute, which means complying with each and every one of the letter’s demands. It’s akin to the famous Henry Ford quote “you can have any color you want, as long as it’s black.”
Comcast didn’t get too far with this hard-line stance. Earlier this month, a Comcast vendor called “LookingGlass Cyber Security Center” sent a demand letter to the registrant of the domain name www.comcastroturf.com. The site, operated by Fight for the Future, is a pro-net neutrality advocacy website calling for the investigation of allegedly fake comments posted to the FCC’s public comment page on new net neutrality regulations. According to the site:
Comcast’s vendor, presumably scrubbing domain name registrations for any use of “COMCAST,” promptly sent a form letter to Fight for the Future, with a variety of rote citations to the Anticybersquatting Consumer Protection Act and the Lanham Act. According to the letter, the law prohibits “using domain names that are identical or confusingly similar to someone else’s trademark.”
While this may be enough to scare off a layperson, or an unsophisticated domain name registrant, it is an incomplete statement of the law. The Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), does not simply prohibit registration of any domain name that incorporates a registered trademark. Instead, a plaintiff under the ACPA must also show the domain name registrant “has a bad faith intent to profit from the mark.” Courts have routinely dismissed ACPA claims when the domain was used for noncommercial purposes or for commentary.
Of course, the demand letter did not mention the bad faith element, presumably to make its demands appear ironclad. But this is a risky strategy. And one that didn’t pay off for Comcast’s vendor.
Once the press learned of the letter, Comcast quickly issued a statement backpedaling on any claims against comcastroturf.com:
As the saying goes, “you can send any demand letter you want, as long as it’s legally accurate.”