and you are trying to hang your hat on a technicality that does not exist. God, no, I'm just running with the thing and I'm appreciative of you taking the time

and you are trying to hang your hat on a technicality that does not exist. God, no, I'm just running with the thing and I'm appreciative of you taking the time to respond in detail. Your argument is about the domain name itself rather than the content. That's exactly right. That and some woolly idea that that the notion of 'confusion' figures in some important way in trademark law. So when you brought up 'nominative use' I thought doesn't the whole confusion thing come up? Does it come before or after the test for nominative use? If there was some possibility of confusion To me, it seems at least conceivable that that's confusing. Maybe tumblr runs such a service, as a status indicator. It is, as you said, a statement of fact - you know, if you can't get to tumblr, please check istumblrdown and we'll tell you what's going on. So I have a harder time getting my head around the idea that istumblrdown is obviously unaffiliated with tumblr the way walmartsucks isn't affiliated with walmart. The EFF page you linked talks about confusion as well and I think that's, err, the source of my confusion.