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“I don’t think it was a mistake,” Oaxaca says. “If we do this again, we’ll have more information than if we hadn’t tried it, to see what is the most effective way to protect our trademark.” He promises that Metrolink is “considering actions against other domain-name holders.”
HOW AN AGENCY LIKE METROLINK, subsidized by California taxpayers to the tune of roughly $130 million a year, decided to spend dwindling taxpayer dollars hauling bloggers and publishers of small Web sites before a foreign panel is a classic tale of unwatched government run amuck. Metrolink is a joint-powers authorityfor Ventura, Los Angeles, San Bernardino, Orange and Riverside counties. Its seven lines don’t serve many — perhaps 20,000 people daily board cars that whip at about 41 miles per hour between L.A., Santa Clarita, Lancaster, San Bernardino and Riverside.
Unlike its closely watched cousin, Metro, which operates the MTA buses and subways, the Metrolink board acts nearly in private, meeting monthly on the 25th floor of a nondescript building downtown. Except for L.A. County supervisors Don Knabe and Michael Antonovich, its 11 board members represent small-time cities like Buena Park, Lake Forest, Moorpark and Temecula.
At its February meeting, behind closed doors, the agency’s chief executive, David R. Solow, presented a scheme to silence metrolinkrider.com and metrolinksucks.com — by taking Arkow before the WIPO.
According to Metrolink communications director Oaxaca, a few board members suggested that the public might get upset if Metrolink shut down a Web site that slams it — then took over the site for itself. But the board gave Solow its tacit approval, and its grievances were drawn up at taxpayer expense by Los Angeles County Counsel Raymond G. Fortner Jr. — then sent on to the World Intellectual Property Organization.
Some of the arguments made by Solow, Oaxaca and Fortner border on humorous: The use of “Metrolink” might make readers think it’s the official agency site, people who don’t speak English might misunderstand the word “sucks” and mistakenly believe it’s the official site, Arkow is trying to steal readers from the official site, and Arkow is using “sucks” to tarnish the agency — an act of “bad faith.”
The Internet — at least in terms of domain names — isn’t the freewheeling frontier often depicted. Domain names are controlled by heavily acronymic organizations that most bloggers and Web site owners have never heard of. The granddaddy is the Internet Corporation for Assigned Names and Numbers (ICANN), a United Nations–created Internet policymaker.
Under ICANN’s policy, the Geneva panel’s handpicked law professors and private lawyers can force people like Arkow to relinquish a Web site they founded whose site name contains a trademarked word. WIPO even has the power to turn over such U.S.-based sites to whatever entity owns the disputed word.
In this country, to violate a trademark, you must act with a “bad-faith intent to profit.” The rule used in Geneva would horrify a First Amendment advocate: A Web site must merely act in “bad faith” — no financial profit need be involved, according to Sam Bayard, assistant director of Harvard University’s Citizen Media Law Project.
Bayard reviewed Metrolink’s move against Arkow, and called its actions “suspicious” and its arguments “weak.” David Peter Allen, a New Jersey–based trademark lawyer and rail advocate, says, “Clearly, what it looks like they’re doing is making people who want to complain about it have a hard time of it. ... I see some First Amendment problems here. They’re making it difficult to express contrary opinions.”
Richard Michael, who runs the small site metrolinktrainriders.com, is another outspoken citizen facing censorship by the Metrolink board. Says Michael: “If it’s not good news, they don’t want anyone to know about it. ... They kill people a couple times a year. They have crashes multiple times a month. They’d like it if nobody ever reported on it — if no one ever said anything.”