AMPAS vs. Sasha Stone

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Sasha Stone's Oscarwatch.com has covered the Oscar scene with class, insight and relentless energy for seven and a half years. She has done more to create a sense of curiosity, suspense and respect for the annual Academy Awards show than the nominations and awards themselves have warranted. Plus she's a struggling overworked mom who isn't getting rich off this endeavor. But at least until last week, Academy attorneys had allowed her use the name "Oscar" on her site without acting like insensitive bullies.

No longer. Last week AMPAS lawyers ordered Stone to give up the "Oscarwatch" name or face a lawsuit.

Why the sudden turnaround? Because they read in Stephen Rodrick's Los Angeles magazine piece about Oscar bloggers ("The Blog Whisperers") that Stone makes a piddly $20 grand a year from Oscarwatch.com ad revenues. Being the owners and absolute rulers of the Oscar trademark, they don't want people profiting from using the name in any kind of commercial venture.

The Academy attorneys are pricks, but they have a point. Stone will probably have to knuckle under and rename her site www.awardsdaily.com, or something along those lines. She should ideally call it www.sashastone.com, but somebody owns that URL, she says. But there's no website using that name so maybe she can purchase it.

An attorney friend has told me Stone should fight this tooth and nail. "I just don't like the idea of a huge corporate entity pushing this little journalist around,' he said. 'She could probably keep the name if she removed that Oscar trademark 'r'. The site's slogan says 'nobody knows anything' -- maybe if she added 'an independent Oscar site' she might be able to keep the name. The bottom line is an issue of people confusing Oscarwatch with the official Oscar site. This could be finessed.

"People are using the word 'Oscar' all over the place. They use it in news articles, columns...everywhere. The term 'Oscar Watch' is used by the Hollywood Reporter, I think. The usage is obviously everywhere, but they're pouncing on Sasha Stone because they read in a magazine article that she earns enough ad money to pay the rent for her apartment and buy her daughter some clothes on EBay and buy some food staples at Costco."

Even if she finally has to surrender the Oscarwatch.com domain name, Stone should fight and stall as much as she can because she needs all the time she can get in order to thoroughly spread the word around about the new site name, whatever it might be.

I think my attorney friend is right. I think is a solvable, finessable situation. If there are any trademark attorneys out there would like to help Stone on a pro bono basis, I'll do everything I can to make sure that their law practice gets a fair amount of professional attention from the entertainment community.

Scott Martelle's Envelope/L.A. Times piece about Stone's legal troubles says that the Academy "has taken similar measures dating back a decade, including moving in 2000 against some 50 websites that incorporated Oscar or Academy in their site names. But this is the first time the Academy has gone after Stone's site.

"Stone speculated she was targeted to preclude other potential users of 'Oscar'from citing her as an example in challenging the Academy's trademark. Yet the name is already part of the common language, she said.

"'I really do think I can argue this thing -- people do use the name all the time Oscarwatching is its own word, really. But I probably just can't afford it. I think I'll just have to comply." Again -- some attorney needs to help this lady out.

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Posted by Jeffrey Wells on February 6, 2007 at 7:39 AM

comment #1

Colin says ...

Well, here is what controls:

http://www.icann.org/udrp/udrp-policy-24oct99.htm

"4. Mandatory Administrative Proceeding.

This Paragraph sets forth the type of disputes for which you are required to submit to a mandatory administrative proceeding. These proceedings will be conducted before one of the administrative-dispute-resolution service providers listed at www.icann.org/udrp/approved-providers.htm (each, a "Provider").

a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith.

In the administrative proceeding, the complainant must prove that each of these three elements are present.

b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."

So basically, AMPAS can easily prove (i) and (ii) under paragraph 4(a). The key is whether it can prove bad faith under (iii) under paragraph 4(a). To do so, it would have to prove (i), (ii), (iii), (iv), or (v) under paragarph 4(b). I see no way that they could prove (i)-(iv).

Thus, it comes down to (v). This would be pretty tough for AMPAS to prove. I'll have to look through some cases to see what has been found in similar matters.

Posted by Colin at February 6, 2007 9:22 AM

comment #2

le corbeau says ...

Colin, I think before this is a domain registration dispute, it's a trademark dispute, and the problem is trademark law makes it very hard for trademark holders to let this sort of thing go without risking losing their trademark. Even Disney might not go after nursery schools with Mickey painted on the wall (then again they might anyway), but the law tells them if they don't, they risk creating a precedent for somebody bigger and more commercial to claim the right to paint Mickey on 1000 walls.

Posted by le corbeau at February 6, 2007 9:31 AM

comment #3

Colin says ...

Yeah, that could be true, Mgmax. Of course, we'd have to see what AMPAS sent to Sasha. I was thinking this would be similar to these:

http://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0706.html (oscartv.com is shut down)

http://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0541.html (porno-oscar.com is shot down)

If it's a trademark dispute, that's a whole other can of worms, but I still think she could mount a viable defense. But again, a lot would depend on what AMPAS is alleging.

Posted by Colin at February 6, 2007 9:37 AM

comment #4

jeffmcm says ...

Clothes on Ebay? That doesn't sound like a good idea.
Regardless, stick it to them, Sasha!

Posted by jeffmcm at February 6, 2007 9:41 AM

comment #5

Colin says ...

And here's another one:

http://www.wipo.int/amc/en/domains/decisions/html/2005/d2005-1063.html (academyawards.net shut down).

It seems that in every AMPAS case, the website owner has decided to capitualte withot mounting a defense.

Posted by Colin at February 6, 2007 9:46 AM

comment #6

JD says ...

Is $20,000 a normal income for a site of Oscarwatch's popularity? How much does Hollywood Elsewhere bring in, Jeff (approximately)?

Posted by JD at February 6, 2007 9:52 AM

comment #7

Craig Kennedy says ...

The reality is that both entities benefit each other and it would be nice if an amicable resolution could be found that maintains the status quo without a bunch of expensive lawyers getting involved.

It's sad that it only becomes a problem once money becomes involved. Just like YouTube is now getting copyright infringement heat only now that it's owned by a company with deep pockets, Sasha is getting muscled probably because of her ad revenue.

Anyway, good luck Sasha. I look forward to your coverage whatever you end up having to call it.

Posted by Craig Kennedy at February 6, 2007 9:52 AM

comment #8

NYCBusybody says ...

If she's a single mother, don't my taxes already pay for her rent?

Posted by NYCBusybody at February 6, 2007 9:56 AM

comment #9

jeffmcm says ...

Not long ago, David Poland claimed that he could make over $100,000 in a single month given strong ad sales - like around Oscar time.
This may be an exagerration.

Posted by jeffmcm at February 6, 2007 9:56 AM

comment #10

jeffmcm says ...

NYCBB, are you deliberately becoming a parody of yourself?

Posted by jeffmcm at February 6, 2007 9:57 AM

comment #11

hiviper says ...

colin, Ebay's a great place to buy & sell kids clothing. Some of the stuff up there is worn once or twice and you get it for fraction of the price.
//end shill for Ebay

I'd be surprised if Jeff is going to divulge his income here.

Posted by hiviper at February 6, 2007 10:02 AM

comment #12

hiviper says ...

sorry - I was directing the Ebay comment to jeffmcm

Posted by hiviper at February 6, 2007 10:03 AM

comment #13

OddDuck says ...

NYBB, could you explain your last post? Your being a dick is the only explanation I can think of, and I'm sure that isn't what you intended :)

Posted by OddDuck at February 6, 2007 10:11 AM

comment #14

MattM says ...

I am a trademark attorney, so can speak to this. The domain name area of law is notoriously owner-favorable. There's an (in)famous decision from a few years back where India's Tata Group managed to get the domain name bodacioustatas.com (used for exactly what you'd think it would be) transferred back to it. However, here, you have no evidence of bad faith/cybersquatting, which will weigh in her favor.

From a trademark perspective, they've got a tougher road to climb, because it's arguably a nominative fair use, and SCOTUS held last year that even if there's some confusion, it wouldn't bar a fair use defense.

If I were a betting man, my bet would be that this resolves with www.oscarwatch.com getting transferred back to AMPAS, but her being allowed to operate under the name OscarWatch at a different site (e.g., www.awardsdaily.com/oscarwatch).

Posted by MattM at February 6, 2007 10:20 AM

comment #15

jeffmcm says ...

I wouldn't buy clothing without being able to try it on or, you know, see if it itches like death.

Posted by jeffmcm at February 6, 2007 10:20 AM

comment #16

Craig Kennedy says ...

No OddDuck, I think you nailed his intentions cold. It's the only explanation. Like the little kid in elementary school who can only get attention by being a little shit.

Posted by Craig Kennedy at February 6, 2007 10:22 AM

comment #17

MattM says ...

Oh, and it's worth noting you can fight and win at relatively low cost. Witness the dustindiamond.com decision.

Posted by MattM at February 6, 2007 10:34 AM

comment #18

Colin says ...

True, MattM, but it should be noted that what you linked wouldn't help Sasha. It contrasts a parody site (okay) from a site that is used to display advertisements (not always okay).

Posted by Colin at February 6, 2007 10:39 AM

comment #19

bipedalist says ...

Anyone working the Oscar beat can make a bundle; it depends on how cut-throat they are. As Jeff knows, I am anything but. I work other freelance gigs in addition this. I used to make nothing for the site for many years, in fact. Poland is a great businessman. Jeff is doing well. I get a percentage of a bigger ad buy. Should I go independent of that, like Jeff, I could probably make more. Who knows. Anyway, thanks for the legal argument stuff above - that helps a lot.

Posted by bipedalist at February 6, 2007 10:39 AM

comment #20

Cadavra says ...

The classy way to handle this would be for AMPAS to charge her one dollar a year for the right to use the name "Oscarwatch." The legal problem is resolved and nobody gets hurt.

Posted by Cadavra at February 6, 2007 11:46 AM

comment #21

Craig Kennedy says ...

I was thinking something exactly along those lines Cadavra. The only negative would be that as an 'official licensee', Oscarwatch could be perceived as less independent and indeed if Sasha said or did something the powers that be disagreed with, they could pull her license.

Posted by Craig Kennedy at February 6, 2007 12:02 PM

comment #22

jeffmcm says ...

That sounds waayyyyy too easy, Cadavra. Surely they'd want more than $1.

Posted by jeffmcm at February 6, 2007 2:06 PM

comment #23

rocco says ...

NYCBB's comment was hilarious...god, can't anyone pick up facetiousness for themselves?

Posted by rocco at February 6, 2007 5:43 PM

comment #24

Craig Kennedy says ...

Delbomber, I enjoy well-phrased, hateful comments as much as the next guy, but not when they're directed at the people who post on these boards and are completely unprovoked.

Certain folks have established a pattern of rude, combative behavior that transcends mere facetiousness and it's tiresome.

Posted by Craig Kennedy at February 6, 2007 6:05 PM

comment #25