On June 26, 2020, the U.S. Supreme Court issued its ruling in United States Patent and Trademark Office et al. v. Booking.com B.V. The high court held that the fact a term is a generic descriptor when standing alone does not dictate that a domain name featuring the same term with a .com appendage is similarly generic. The high court reasoned that, while terms such as “bookings” may refer generically to hotel reservations, terms such as “bookings.com” may describe the specific reservations made from that particular website. The distinction was and is important because U.S. trademark law generally finds generic names to be unavailable for trademark protection. Descriptive terms, however, may ascend to protectability if they are used so extensively in a trademark fashion that the public comes to believe the terms refer to products or services that come from specific sources.
A faithless elector is a generic term that refers to a person who is entrusted to cast a vote consistent with the will of those who entrusted him or her with the voting power but instead votes in his or her own discretion, as he or she sees fit. The Supreme Court holding in Booking.Com, would mean that — despite the genericism of that phrase — its sister phrase, FaithlessElector.com, could be viewed as describing the particular faithless directors highlighted on a website tagged with that domain name. If enough money was spent and enough eyeballs were attracted to that site, FaithlessElector.com could become known in the minds of the masses as the source for particular stories or products. It then could be registered as a trademark and have significant value.
Sadly, however, the benefit conferred by the Supreme Court ruling on such a website would be short-lived. A scant week later, on July 6, 2020, the high court issued another ruling, this time in the case of Chiafalo v Washington. In Chiafalo, the Austere Bench ruled that the U.S. Constitution did not preclude a state from removing one of its electors who was about to vote contrary to his or her mandate, and did not preclude punishing those who managed to escape removal and vote in a non-prescribed way. Although the court previously had ruled, 70 years ago, that states could require their electors to vote faithfully, in Ray v Blair, it had specifically reserved ruling on whether or not an individual elector could be removed or punished for violating the mandate. Chiafalo now has settled that question, and in so doing has likely put an end to the concept of a “faithless elector” and undoubtedly diminished or extinguished the related T-shirt, travel mug, lunchbox and rap song markets.
In light of this ruling, one would undoubtedly feel the sprightly life of FaithlessElector.com was cut short, destined to wither away and fade into the obscure annals of history. To assume as much, however, would be error. It turns out that the website FaithlessElector.com actually exists and has existed since 2016. In that year, a man named James McCrone penned a novel entitled “Faithless Elector.” It tells a tale of murder and mayhem on the eve of an American presidential election and is the first of a trilogy. In conjunction with the publication of the work, McCrone (or his publisher or distributor), acquired the domain name FaithlessElector.com and positioned it so that any internet joyrider who enters the term is directed to McCrone’s website. There, the site visitor may learn about the novel and others written by the author.
Which brings us to perhaps the most intriguing question of all: Will McCrone, his novel and his website survive the ragged winds of time, now that the real-life faithless elector is no more? The answer ultimately may not depend on any Supreme Court precedent or rationale, but rather on whether the novel is well-written and insightful or meaningless pulp. I would give you my opinion on its chances, but I haven’t read it.
© 2020 under analysis distribution LLC. under analysis is a nationally syndicated column of the Levison Group. Charles S. Kramer is a principal of the St. Louis-based law firm Riezman Berger. Comments about this column may be sent to the group c/o this paper or direct to [email protected]