Commentary: New questions raised on Google, MoveOn.org relationship Robert Cox, The Examiner 2007-10-25 07:00:00.0 Current rank: # 283 of 9,199 WASHINGTON - Internal documents obtained by The Examiner shine new light on MoveOn.org’s “General Betray Us” ad and raise fresh questions about the far-left advocacy group’s misleading statements on the issue and its relationship with Google, a major donor to its political action committee. The documents show how MoveOn.org used dubious claims of trademark infringement and threats of litigation to silence critics of its recent controversial full-page ad in The New York Times attacking Gen. David H. Petraeus, the top U.S. general in Iraq, which appeared the day he was testifying before Congress on the war effort. Among those critics was Sen. Susan Collins, R-Maine, who is seeking a third term. The controversial full-page ad in The New York Times attacking Gen. David H. Petraeus, the top U.S. general in Iraq. After The Examiner exclusively reported Oct. 11 that Google had banned four anti-MoveOn.org ads placed by the Collins campaign, Google and MoveOn.org each sought to portray the ban as unrelated to the Petraeus ad controversy. The documents obtained by The Examiner, however, show a direct link between the two events. Google’s policy counsel in Washington, D.C., Pablo Chavez, claimed Oct. 12 that the Collins ads were “rejected by our system because of our trademark policy,” and he described MoveOn.org’s trademark complaint as having been filed “some time ago.” Jennifer Lindenauer, MoveOn.org’s communications director, likewise sought to create distance between the trademark complaint and the “General Betray Us” controversy. According to an Oct. 15 Wired magazine report, Lindenauer said MoveOn.org filed its complaint with Google to prevent “fraudsters” from using the advocacy group’s name to collect contributions under false pretenses. She said MoveOn.org “opted out” of the complaint as soon as it become aware of the controversy over the Collins campaign ad. Documents obtained by The Examiner show, however, that MoveOn.org’s complaint to Google was part of a broader effort by the advocacy group to silence its critics through threats and intimidation and had nothing to do with preventing fraud. MoveOn.org filed its trademark complaint with Google on Sept.19 in the midst of the bitter public debate generated by the Petraeus ad. On the same day, MoveOn.org’s Carrie Olson sent a “cease and desist” letter to CafePress.com demanding that the online merchandiser stop selling anti-MoveOn.org T-shirts designed by “Waitress Polly,” a blogger from a military family who created the T-shirts to protest the “General Betray Us” ad. None of the complaints filed by MoveOn.org with Google or CafePress.com asserted that a “third party” was making fraudulent use of MoveOn.org’s name to collect financial contributions. Olson, who is MoveOn.org’s chief operating officer, alleged trademark infringement and threatened legal action against CafePress.com if it did not take down the critical ads. She also demanded contact information for ‘Waitress Polly’ and that all orders the anti-MoveOn.org T-shirt be stopped. CafePress.com did as demanded. Also on Sept. 19, MoveOn.org’s Erik Olson — husband of Carrie Olson — filed a trademark complaint with Google seeking to block any mention of MoveOn.org by any advertiser for any reason, including ads that criticize MoveOn.org by name. It was this complaint that Google cited as the basis for banning Sen. Collins’ anti-MoveOn.org ads. Google’s complaint form used by MoveOn.org required that the trademark owner make a legal affirmation that the complainant has a “good faith belief” that the use of the trademark is not “permissible under law.” MoveOn.org, however, did not cite any specific ad, nor did it provide Google with any evidence of trademark infringement. The advocacy group has since said publicly that the Collins ads are permissible under the law. Google told Collins campaign officials that the company’s “trademark team” was still investigating MoveOn.org’s complaint when The Examiner’s Oct. 11 story was published. Google hasn’t said how the Collins’ ads were flagged for removal if Google had not yet made a decision on the validity of MoveOn.org’s sweeping trademark claims. Google also hasn’t explained how MoveOn.org knew Google had a policy that permits trademark owners to implement a universal ban on use of the advocacy group’s name in any Google ad when no such policy is described on the Google Web site. Likewise, Google could not say how the Collins campaign, or any advertiser, would be expected to know that “MoveOn.org” was a “banned” term since Google does not make such information available to advertisers and does not “auto-reject” ads with banned trademark terms. Finally, Google hasn’t explained why the Collins campaign was informed Oct. 8 that its anti-MoveOn.org ads were removed due to a “trademark policy violation” when there is no such policy contained in Google’s “terms of service.” Robert Cox is a member of The Examiner’s Board of Bloggers and is president and founder of the Media Bloggers Association. Google, MoveOn.org Timeline September 7 – MoveOn.org calls The New York Times to place an ad to run Sept. 10, the day Gen. David H. Petraeus will testify before Congress on the "surge" in Iraq. Eli Pariser, the executive director of MoveOn.org, later tells Clark Hoyt, the New York Times Public Editor, "The Times called back and told us there was room Monday, and it would cost $65,000." September 9 – MoveOn.org sends an email to its 3.2 million members alerting them that an ad will run in the next day's New York Times. September 10 - Gen. David H. Petraeus testifies before Congress. September 10 - The New York Times runs a full-page ad from MoveOn.org with the headline "General Petraeus or General Betray Us?" setting off a political firestorm. September 10 - A pseudonymous blogger, Waitress Polly, creates a t-shirt criticizing MoveOn.org for the "General Betray Us" ad and advertises the t-shirt on CafePress.com. September 13 - Abbe Serphos, director of public relations for The New York Times, tells the New York Post "the open rate for an ad of that size and type is $181,692." September 13 – MoveOn.org tells the New York Post that MoveOn paid $65,000 for the ad. September 14 - The New York Times denies the rate charged to MoveOn.org indicated a political bias or that MoveOn received special treatment. September 14 - The American Conservative Union files a formal complaint against MoveOn.org Political Action and The New York Times Company with the Federal Election Commission alleging "illegal excessive corporate contribution from the New York Times Company to MoveOn.org Political Action". September 18 - Rep. Thomas M. Davis III, R-VA, calls for hearings on the MoveOn.org ad to investigate whether the "General Betray Us" ad discount constituted an illegal soft-money contribution from The New York Times Company to a registered political action committee. September 19 - Carrie Olson, the Chief Operating Officer of MoveOn.org, sends an email to CafePress.com alleging trademark infringement. MoveOn.org demands that CafePress.com takes down the ads for the "Waitress Polly" t-shirts criticizing MoveOn.org and that CafePress.com turn over personal information for Waitress Polly. Olson writes: "We have been alerted to an entire page of items on your website that infringes on our registered trademark, and we request that you remove all items immediately, and ask the poster to refrain from shipping any items purchased on this webpage. We also request that you give us contact information for the company / person who posted the items. This content has certainly NOT been authorized by anyone at MoveOn.org, nor anyone affiliated with Move- On.org". September 19 - Lindsey Estes of CafePress.com responds to MoveOn.org's demands by turning over Waitress Polly's confidential personal information and removing the Waitress Polly t-shirt ads from the CafePress.com web site. September 19 - Carrie Olson of MoveOn.org sends a second email to CafePress.com alleging additional trademark infringement violations by other CafePress.com "shopkeepers". Lindsey Estes does not respond to the second email and the additional ads are not removed. September 19 - Erik Olson, Systems Administrator of MoveOn.org, files a "Google AdWords Trademark Complaint" with Google asserting a sweeping trademark claim for the term "MoveOn" in order to prevent any and all uses of the word "MoveOn" or "MoveOn.org" in any ads including the non-infringing, nominative use of the term. Although the complaint does not specify any particular trademark violation in any particular ad, Olson checks a required box "LEGAL AFFIRMATIONS: I have a good faith belief that the use of the trademarks described above with the advertisements described above are not authorized by the trademark owner or its agent, nor is such use permissible under law." September 19 - Google sends Erik Olson of MoveOn.org an "auto-generated email" confirming that Google has received MoveOn.org's complaint and "queued it for review". The message states, "Once our investigation is complete, we will send you an email confirmation. Please note that we receive a high volume of trademark complaints and address them in the order they are received." September 20 - Catherine Mathis, New York Times spokeswoman tells Clark Hoyt, the paper's Public Editor, the reason MoveOn.org received a $77,000 discount on the "Betray Us" ad was because an advertising sales representative "made a mistake" in failing to make it clear that for the discounted rate The Times could not guarantee the Monday placement of the ad. September 20 - John Cornyn, R-TX, introduces a non-binding resolution denouncing the "Betray Us" ad. 71 senators, including 22 Democrats, vote for the resolution. September 20 – During a White House news conference, President Bush calls the "Betray Us" ad "disgusting". September 21 - Dan Pontes, an in-house lawyer for CafePress.com, replies to Carrie Olson's demand that ads critical of MoveOn.org be removed from the CafePress.com web site: "MoveOn.org occupies an important place in our nation's political discourse, both for supporters of your organization and its detractors. While we understand that negative commentary is unsavory, our shopkeepers' parodies of the MoveOn.org trademark are permissible here, especially when one considers the First Amendment implications raised by the social and political importance of your organization, the policies it advocates, and the countervailing messages conveyed by the parodies. Speech conveyed through the use of a message on t-shirts and related apparel items has long been held to be protected speech under the First Amendment. See Ayres v. City of Chicago, 125 F.3d 1010,1014 (7th Cir. 1997), Cohen v. California, 403 U.S. 15, 18 (1971). T-shirts and related items have repeatedly been held to be permissible avenues for parodies, regardless of whether or not they are sold at a profit. See, for example, Black Dog Tavern Co. v. Hall, 823 F. Supp. 48, 57-58 (D. Mass. 1993) ("the fact that defendant's parody t-shirts are sold for profit does not alter the conclusion [of a diminished risk of confusion.]) " September 21 – MoveOn.org sends e-mails to its 3.2 members to announce it raised $500,000 the day the Senate voted on the Cornyn resolution, its biggest one-day fundraising total all year, and that over a four day period it raised $1.6 million. September 23 - MoveOn.org issues a statement claiming it was not aware that the group was receiving a special advertising rate and volunteers to pay The New York Times the difference between the regular advertising rate and the discounted rate they received: "Now that the Times has revealed this mistake for the first time, and while we believe that the $142,083 figure is above the market rate paid by most organization, out of an abundance of caution we have decided to pay that rate for this ad. We will therefore wire the $77,083 difference to the Times tomorrow (Monday)". September 24 - The New York Times reports that MoveOn.org voluntarily wires $77,000 to The New York Times to make up the difference between the $64,575" seven-day standby rate" it was charged for the "Betray Us" and the $142,083 "fixed-date rate". September 24 - Los Angeles Times blogger Jon Healy reports that MoveOn.org has filed trademark infringement complaints with CafePress.com in an attempt to prevent CafePress.com "shopkeepers" from advertising merchandise imprinted with criticism of MoveOn.org over the "Betray Us" ads. September 24 - Waitress Polly offers a new t-shirt design for sale on CafePress.com and offers to donate all the proceeds from the sale of the shirts to "Operation Purple", a program run by the National Military Family Association to send children of serving soldiers in Iraq to summer camp. September 26 - Republicans in the House use a parliamentary maneuver to force a vote on a non-binding resolution denouncing the "Betray Us" ad. The resolution passes by a vote of 341-79. October 5 - The campaign committee for Sen. Susan Collins, R-ME, takes out four "AdWords" ads on Google to raise awareness among voters that MoveOn.org has made Collins the group's "#1 Target." The ads mention MoveOn.org by name and link back to a landing page on the Collins web site that features the "General Betray Us" ad. October 8 - Google informs the Collins campaign that the Collins/MoveOn.org ads have been removed and the ad campaign suspended on the grounds that the ads violate Google's "trademark policy". October 11 – The Examiner reports that Google had banned anti-MoveOn.org ads purchased by the Collins campaign based on a trademark infringement complaint filed by MoveOn.org. October 12 - Pablo Chavez, Google Policy Counsel in Washington, issues a statement on the Google Public Policy blog defending Google's actions: "Recently, representatives of Senator Susan Collins' Senate re-election campaign tried to place an ad on Google that included a reference to MoveOn.org, a political group. The text of this ad was rejected by our system because of our trademark policy, not because of its political content. Under our trademark policy, a registered trademark owner may request that its mark not be used in the text of other parties' ads. Some time ago, MoveOn.org submitted a request to Google that its trademark not be used in any ads, and as a result our advertiser support team offered instructions on how Senator Collins' campaign could edit and resubmit its ad." October 12 - MoveOn.org opts-out of the Google trademark complaint process. October 15 - Wired magazine reports that MoveOn.org "backed down" in its trademark complaints to Google. Jennifer Lindenauer, MoveOn.org's communications director, told Wired that MoveOn.org initially asked Google to ban third-parties' use of its name in text advertisements to prevent fraudsters from advertising on the network and collecting contributions in the group's name. Lindenauer added: "We don't want to support a policy that denies people freedom of expression. When we became aware of all the controversy around it, we opted out. Of course we support free speech, and the right of anyone to parody us, but what we do care about is protecting our members -- we don't want anyone using our name or logo in a way that could harm our members and mission." October 15 – Examiner editorial asks "Why the silence on Google's censorship?" among bloggers and civil libertarians on the Left and Right? October 18 – The Examiner publishes suggestions for how Google should revise its trademark protection policy to avoid it being used to suppress political speech critical of trademark holders. October 19 - Google tells the Collins campaign that Google was still in the process of investigating the complaint when the issue was posted on the blog indicating that Google never formally responded to Erik Olson's trademark complaint filed on September 19, 2007. Sources: Published reports, documents obtained by The Examiner.