DOCSLIB.ORG

Technology Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Technology Law Illinois Association of Defense Trial Counsel P.O. Box 7288, Springfield, IL 62791 IDC Quarterly Vol. 16, No. 3 (16.3.30) Technology Law By: Michael C. Bruck* Crisham & Kubes, Ltd. Chicago Jerry Falwell’s Ears are Burning - Gripe Sites, Domain Names, And Rejecting the Initial Interest Confusion Doctrine The ease and accessibility of the internet has made it an ideal place for people to create personal blogs, gripe sites, and rant forums. This broad-based expansion of personal communication has provided ample opportunity for internet users to share ideas and voice their opinions on an array of subjects. It also has generated substantial litigation involving same-name or similar name websites and their impact on free speech and trademark law. In late April, the Supreme Court denied certiorari to Lamparello v. Falwell, a case from the Fourth Circuit involving trademark infringement and cybersquatting that could have major implications for free speech and the impact of trademark law on the internet. 126 S. Ct. 1772 (2006). Background The Lamparello case, decided by the Fourth Circuit on August 24, 2005, centers around Reverend Jerry Falwell, “a nationally known minister who has been active as a commentator on politics and public affairs” who owns the trademarks “Jerry Falwell,” “Falwell,” “Listen America with Jerry Falwell,” and “www.falwell.com.” 420 F.3d 309, 310 (4th Cir. 2005). The plaintiff, Christopher Lamparello, created a website that responded to Falwell’s opinions about homosexuality. Id. Lamparello registered the domain name “www.fallwell.com,” which is one letter off the correct spelling of Jerry Falwell’s last name and website address. Id. Lamparello sued in the United States District Court for the Eastern District of Virginia for a declaration that his internet domain, “www.fallwell.com,” was not infringing trademark or cybersquatting, registering, trafficking in, or using a domain name with bad-faith intent to profit from the goodwill of a trademark belonging to someone else, “www.falwell.com.” Id. Falwell counterclaimed and alleged trademark infringement, false designation of origin, unfair competition, and cybersquatting. Id. at 312. Both parties filed motions for summary judgment, and the district court enjoined Lamparello from using Falwell’s trademark, required Lamparello to transfer “www.fallwell.com” to Falwell, but denied Falwell’s requests for attorney’s fees and statutory damages. Id. Both parties appealed. Id. The Fourth Circuit Court of Appeals ultimately held that Lamparello’s website did not infringe under the Lanham Act and did not violate the Anticybersquatting Consumer Protection Act of 1999 (“ACPA”). Id. at 309. The court reasoned that Lamparello did not infringe or falsely designate Falwell’s domain name under the Lanham Act because Lamparello’s website could not be confused with Falwell’s website. For example, Lamparello’s website contained a disclaimer and bore no resemblance to Falwell’s web design. In addition, the court concluded that Lamparello did not Page 1 of 4 Illinois Association of Defense Trial Counsel P.O. Box 7288, Springfield, IL 62791 IDC Quarterly Vol. 16, No. 3 (16.3.30) cybersquat under the ACPA because he did not have a bad faith intent to profit using www.fallwell.com. The court also rejected Falwell’s initial interest confusion argument that Lamparello’s website lured potential customers away from www.falwell.com by passing off his goods as those of Falwell. Id. at 316. The court held that the initial interest confusion argument was inadequate because a web user would not confuse the content of www.falwell.com with www.fallwell.com. Commercial Speech Under the Lanham Act In arriving at its ruling, the court first found that Falwell had no cause of action under the Lanham Act. Id. at 314. The purpose of the Lanham Act is to prevent trademark infringement and protect product identification, provide consumer information, and encourage the production of quality goods. Id. at 313. There are two requirements to find infringement under the Lanham Act: (1) the trademark must be used commercially or in connection with the sale of goods or services; and (2) a likelihood of confusion must exist. Id. Lamparello argued that the Lanham Act must be restricted to commercial speech, which is speech proposing a commercial transaction, and not critical or ideological speech. Id. at 313. Amendments to the Lanham Act, the Federal Trademark Dilution Act of 1995 (“FTDA”) and the ACPA demonstrate that trademark laws were not intended to impinge on First Amendment rights of critics. Id. The FTDA only applies to “commercial use in commerce of a mark,” and a person is not a cybersquatter under ACPA if the person’s use of the mark is “bona fide noncommercial or fair use.” Id. The court noted, however, that the Lanham Act does not use the term noncommercial. Id. at 314. Instead, the Lanham Act applies to the use of a mark “in connection with any goods or services,” which can include non- commercial public and civic benefits. Id. The court did not decide what type of speech the Lanham Act protected; however, the court highlighted that Lamparello’s website did not sell or promote any goods and services and existed solely to promote Lamparello’s views on homosexuality. The Fourth Circuit further ruled that Lamparello was not liable for trademark infringement and false designation under the Lanham Act because there was no likelihood of confusion. Id. Seven factors establish whether there is a likelihood of confusion, but “not all these factors are always relevant or equally emphasized in each case.” The factors are “(a) the strength or distinctiveness of the mark; (b) the similarity of the two marks; (c) the similarity of the goods/services the marks identify; (d) the similarity of the facilities the two parties use in their businesses; (e) the similarity of the advertising used by the two parties; (f) the defendant’s intent; and (g) actual confusion.” Id. at 315. Lamparello’s website did not create confusion because it did not offer goods or services, did not attempt to imitate Falwell’s website, and was not a facility for advertising. Id. The Initial Interest Confusion Doctrine In addition to holding that Lamparello’s website caused no likelihood of confusion, the court rejected Falwell’s argument that Lamparello violated the initial interest confusion doctrine. Id. at 316. Initial interest confusion “forbids a competitor from luring potential customers away from a producer by initially passing off its goods as those of the producer’s, even if confusion as to the source of the goods is dispelled by the time any sales are consummated.” Id. This doctrine is used sporadically in conjunction with the “actual confusion” factor to assess the likelihood of confusion under the Lanham Act. For example, typosquatting or URL hijacking, a type of cybersquatting which relies on typographical errors made by internet users when inputing a website address, can be used to create initial confusion. If the misspelled website is made in a similar style as the producer’s website and tries to sell similar items, the typosquatter would create initial interest confusion. Here, Falwell argued that Lamparello’s website, www.fallwell.com, is a misspelled version of www.falwell.com, and the Page 2 of 4 Illinois Association of Defense Trial Counsel P.O. Box 7288, Springfield, IL 62791 IDC Quarterly Vol. 16, No. 3 (16.3.30) website had a link to a website selling literature that related to Lamparello’s message. However, Lamparello’s website does not sell any goods and states “[t]his website is not affiliated with Rev. Dr. Jerry Falwell or his ministry. If you would like to visit Rev. Falwell’s website, you may click here.” Id. at 311. If Lamparello’s website looked similar to Falwell’s website or sold any products, the court probably would have determined he had violated the Lanham Act. The Fourth Circuit noted, however, that it has not adopted the initial interest confusion doctrine. Id. at 316. Instead, the court found what constituted confusion under the Lanham Act by analyzing the use of the mark in the context in which it was seen by the ordinary customer and not by comparing marks out of context or looking at domain names apart from their underlying content. Id. In addition, even if the court used the initial interest doctrine, Lamparello was not liable because he ran a gripe site that did not use Falwell’s mark for business or financial gain. Id. The Fourth Circuit’s ruling undermines its 2001 opinion in PETA v. Doughney, and appears to reverse its stance on initial interest confusion. In PETA, the court held that Doughney’s use of the domain name “www.peta.org,” which linked to commercial sites and contained information antithetical to PETA’s purpose, constituted trademark infringement. The court reasoned that Doughney’s use of “www.peta.org” did not create a successful parody of PETA. 263 F.3d 359, 366 (4th Cir. 2001). For a parody to be successful, it “must convey two simultaneous and contradictory messages; that it is the original, but also that it is not the original and is instead a parody.” Id. at 366. The court concluded that the domain name was not a parody and, therefore, did not contain two simultaneous and contradictory messages. Id. The Lamparello court claims that PETA did not adopt the initial interest confusion doctrine. 420 F.3d at 316. PETA’s holding demonstrated, however, that the court actually ruled that Doughney was liable for initial interest confusion because his domain name would make internet users initially interested in the website because of the belief it was related to PETA. 263 F.3d at 366.
Load more

Recommended publications
  • Dispute Resolution Mechanisms and Trademark Cybersquatting in Gtlds Old Style, Cctld Style and Gtld New Style
    Dispute Resolution Mechanisms and Trademark Cybersquatting In ccTLD, Old Style gTLD and New Style gTLD Systems COMPARATIVE ANALYSIS OF THE US, EU AND INTERNATIONAL APPROACHES By Waddah Al-rawashdedh University of Szeged Faculty of Law and Political Sciences Graduate School Hungary 2017 Spring Dispute Resolution Mechanisms & Trademark Cybersquatting Table of Contents Page DEDICATION ............................................................................................ 8 ACKNOWLEDGMENTS ......................................................................... 9 LIST OF ABBREVIATIONS ................................................................... 10 ABSTRACT ................................................................................................ 12 INTRODUCTION ...................................................................................... 14 CHAPTER 1 DOMAIN NAMES AND TRADEMARKS ................................................ 22 1.1. Overview ....................................................................................... 22 1.2. Meaning of Domain Names and Domain Name System (DNS) ............................................................................................. 22 1.3. The Need and Importance of Domain Names ........................... 25 1.4. Types of Domain Names ............................................................. 26 1.4.1. “Country-code” TLDs ............................................................................... 26 1.4.2. “generic” TLDs ........................................................................................
    [Show full text]
  • The Trend Towards Enhancing Trademark Owners' Rights-A Comparative Study of U.S. and German Trademark Law, 7 J
    Journal of Intellectual Property Law Volume 7 | Issue 2 Article 2 March 2000 The rT end Towards Enhancing Trademark Owners' Rights-A Comparative Study of U.S. and German Trademark Law Rudolf Rayle the University of Iowa Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Comparative and Foreign Law Commons, and the Intellectual Property Law Commons Recommended Citation Rudolf Rayle, The Trend Towards Enhancing Trademark Owners' Rights-A Comparative Study of U.S. and German Trademark Law, 7 J. Intell. Prop. L. 227 (2000). Available at: https://digitalcommons.law.uga.edu/jipl/vol7/iss2/2 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. Rayle: The Trend Towards Enhancing Trademark Owners' Rights-A Comparativ JOURNAL OF INTELLECTUAL PROPERTY LAW VOLUME 7 SPRING 2000 NUMBER 2 ARTICLES THE TREND TOWARDS ENHANCING TRADEMARK OWNERS' RIGHTS-A COMPARATIVE STUDY OF U.S. AND GERMAN TRADEMARK LAW Rudolf Rayle* I. INTRODUCTION Conventionally trademarks are said to serve primarily as source identifiers. They are the medium through which consumers identify a particular product with a specific source (i.e., serve an identification or origin function). The origin function is therefore claimed to be the main function of trademarks and at first glance the definitions of trademarks in the Lanham Act as well as in the German Trademark Act, seem to confirm this traditional view.' * Rudi Rayle attended the Universities of Bonn and Tuebingen, Germany.
    [Show full text]
  • Vol. 93 TMR 1035
    Vol. 93 TMR 1035 RECONSIDERING INITIAL INTEREST CONFUSION ON THE INTERNET By David M. Klein and Daniel C. Glazer∗ I. INTRODUCTION Courts developed the theory of initial interest confusion (or “pre-sale confusion”) to address the unauthorized use of a trademark in a manner that captures consumer attention, even though no sale is ultimately completed as a result of any initial confusion. During the last few years, the initial interest confusion doctrine has become a tool frequently used to resolve Internet- related disputes.1 Indeed, some courts have characterized initial interest confusion on the Internet as a “distinct harm, separately actionable under the Lanham Act.”2 This article considers whether the initial interest confusion doctrine is necessary in the context of the Internet. Courts typically have found actionable initial interest confusion when Internet users, seeking a trademark owner’s website, are diverted by identical or confusingly similar domain names to websites in competition with, or critical of, the trademark owner. A careful analysis of these decisions, however, leads to the conclusion that a distinct initial interest confusion theory may be unnecessary to resolve cases involving the unauthorized use of a trademark as a domain name. In fact, traditional notions of trademark infringement law and multi-factor likelihood of confusion tests may adequately address the balancing of interests required in cases where courts must define the boundaries of trademark owners’ protection against the use of their marks in the domain names of competing websites. The Federal Trademark Dilution Act (FTDA)3 and the Anticybersquatting Consumer Protection Act (ACPA)4 provide additional protection against the unauthorized use of domain names that dilute famous marks or evidence a bad ∗ Mr.
    [Show full text]
  • Master of the Domain (Name)
    Santa Clara High Technology Law Journal Volume 17 | Issue 2 Article 5 January 2001 Master of the Domain (Name): A History of Domain Name Litigation and the Emergence of the Anticybersquatting Consumer Protection Act and Uniform Dispute Resolution Policy Colby B. Springer Follow this and additional works at: http://digitalcommons.law.scu.edu/chtlj Part of the Law Commons Recommended Citation Colby B. Springer, Master of the Domain (Name): A History of Domain Name Litigation and the Emergence of the Anticybersquatting Consumer Protection Act and Uniform Dispute Resolution Policy, 17 Santa Clara High Tech. L.J. 315 (2000). Available at: http://digitalcommons.law.scu.edu/chtlj/vol17/iss2/5 This Comment is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara High Technology Law Journal by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. Master of the Domain (Name): A History of Domain Name Litigation and the Emergence of the Anticybersquatting Consumer Protection Act and Uniform Dispute Resolution Policy Colby B. Springer" TABLE OF CONTENTS I. Introduction ......................................................................................... 316 II. Internet Fundamentals ......................................................................... 317 III. The Domain Name System: IP Addresses and Domain Names .......... 318 IV. Getting Stuck in the Web: Domain Name Registration
    [Show full text]
  • Cybersquatting: Threat to Domain Name
    International Journal of Innovative Technology and Exploring Engineering (IJITEE) ISSN: 2278-3075, Volume-8, Issue- 6S4, April 2019 Cybersquatting: Threat to Domain Name Sukrut Deo, Sapna Deo Abstract— The present article deals with conflicts arising out cybersquatters use combination of illicit and legal work. The of registration of domain names of existing trade names with the end results in the legitimate owner suffering a huge loss. intention to resell it and/or encash the goodwill. Such practice is known as ‘Cybersquatting’. Registration of Domain names and METHODOLOGY acquiring a domain name of choice has become a rage over the time. It is the first come first get thing for getting registered. In The methodology opted by the researcher is “doctrinal”. this paper the researcher has explained what a cybersqatting is Such Doctrinal legal research has been carried out through alongwith various types of cybersquatting and its prevention and following sources such as International Treaties, Covenants targets. This paper also suggests remedial measures to deal with and Conventions; Constitutional Provisions; Information cybersquatting. The Anti Cybersquatting Consumer Protection Act (ACPA), an enactment by United States, needs a special Technology Act, 2000; Trademarks Act, 1999; Copyrights applaud for being the first country to have introduced a special Act, 1957; ICANN, WIPO, UNDRP etc.; Reported act for dealing with the menace of cybersquatting which was the decisions of the courts and Secondary Sources such as need of the hour. It so happens that people opt to buy the domain Commentaries and reference books; Journals; Magazines; name from squatters as it being cheap instead of seeking remedy Newspaper articles; Official Statistics; Internet sources.
    [Show full text]
  • UDRP Versus ACPA: Choosing the Right Tool to Challenge Cybersquatting by Connie L
    UDRP Versus ACPA: Choosing the Right Tool to Challenge Cybersquatting by connie l. ellerbach One of the most frequent sources of conflict on the Internet has of bad faith can be easily demonstrated. Complex disputes, resulted from the unauthorized registration and use of domain such as determining which of two users has superior rights to names containing other parties’ trademarks or company names, the mark contained in a domain, or where there are complicated a practice commonly referred to as cybersquatting. Fortunately, evidentiary issues, are beyond the scope of the UDRP. trademark law has evolved to offer a variety of increasingly Another drawback of UDRP proceedings is that due to the focused and effective remedies to address such abuses, two lack of evidentiary guidelines, lack of requirement to follow of the most recent of which are: the Internet Corporation for precedent, and the varying experience and political philosophy Assigned Names and Numbers’ Uniform Domain Name Dispute of the panelists, rulings can be unpredictable and inconsistent Resolution Policy (“UDRP”), and the federal Anticybersquatting with previous decisions addressing similar fact patterns. Consumer Protection Act (“ACPA”). It is important that Nowhere has this been more true than in celebrity domain name trademark owners appreciate the strengths and weaknesses disputes. Compare Julia Fiona Roberts v. Russell Boyd, Case No. of each when selecting the appropriate forum to challenge the D2000-1210 (WIPO May 29, 2000) (awarding Ms. Roberts the registration of domains containing their trademarks. <juliaroberts.com> domain based on her common law service A. The UDRP mark rights in her name) with Reverend Dr.
    [Show full text]
  • Masters of Their Domains: Trademark Holders Now Have New Ways to Control Their Marks in Cyberspace
    Roger Williams University Law Review Volume 5 | Issue 2 Article 7 Spring 2000 Masters of Their omD ains: Trademark Holders Now Have New Ways to Control Their aM rks in Cyberspace Gregory B. Blasbalg Roger Williams University School of Law Follow this and additional works at: http://docs.rwu.edu/rwu_LR Recommended Citation Blasbalg, Gregory B. (2000) "Masters of Their omD ains: Trademark Holders Now Have New Ways to Control Their aM rks in Cyberspace," Roger Williams University Law Review: Vol. 5: Iss. 2, Article 7. Available at: http://docs.rwu.edu/rwu_LR/vol5/iss2/7 This Notes and Comments is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion in Roger Williams University Law Review by an authorized administrator of DOCS@RWU. For more information, please contact [email protected]. Masters of Their Domains: Trademark Holders Now Have New Ways to Control Their Marks in Cyberspace I. INTRODUCTION On November 29, 1999, President Clinton signed the Anti- cybersquatting Consumer Protection Act (ACPA) into law.' The ACPA was designed to prevent a practice that has become known as cybersquatting. 2 Cybersquatting is the common term for the practice of registering an Internet domain name that is similar or identical to a trademark of another.3 Domain names are the catchy words ending in "dot com" that we have all been exposed to with increasing frequency as the Internet has continued its expan- sion.4 They are necessary because as humans, we are not capable of dealing with the addresses that the Internet network actually 1.
    [Show full text]
  • UNITED STATES DISTRICT COURT SOUTHERN DISTRICT of FLORIDA CASE NO. 13-61535-CIV-MARRA ERIC NOVESHEN, Plaintiff, V. BRIDGEWATER A
    Case 0:13-cv-61535-KAM Document 19 Entered on FLSD Docket 09/22/14 09:09:02 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 13-61535-CIV-MARRA ERIC NOVESHEN, Plaintiff, v. BRIDGEWATER ASSOCIATES, LP, and RAYMOND DALIO, Defendants. _________________________________________/ OPINION AND ORDER This cause is before the Court upon Defendants’ Motions to Dismiss (DE 13). The Motion is ripe for review. The Court has considered the briefing and is otherwise fully advised in the premises. For the reasons stated below, Defendants’ Motion to Dismiss (DE 13) is GRANTED IN PART and DENIED IN PART. I. Background This case arises out of a trademark dispute. In 2006, Plaintiff established a Bermuda- registered mutual fund Bridgewater Capital Ltd. (“Bridgewater Capital”) designed to provide short term loans, or “bridge” capital, to small public and private companies by purchasing promissory notes and secured asset-based lending. Compl., ¶¶ 14-19 (DE 1). Shortly thereafter, Plaintiff registered top level domains “bridgewaterfunds.com” and “bridgewaterfund.com.” Id. Plaintiff never set up a website, but used the domain names for purposes of communication and e-mail. Id., ¶ 50. Additionally, Bridgewater Capital registered domain names “bridgewaterfund.org,” “bridgewaterfund.net,” and “bridgewaterfund.info.” Id., Ex. A, E. Defendant Bridgewater Associates, LP, a Delaware limited partnership, (“Bridgewater Case 0:13-cv-61535-KAM Document 19 Entered on FLSD Docket 09/22/14 09:09:02 Page 2 of 14 Associates” or “Defendant”) is an investment advisor that performs global fixed income and currency management for institutional clients, including foreign governments, pension funds, university endowments, and charitable foundations.
    [Show full text]
  • DOMAIN NAME SPECULATION: ARE WE PLAYING WHAC-A-MOLE? Sara D
    DOMAIN NAME SPECULATION: ARE WE PLAYING WHAC-A-MOLE? Sara D. Sunderland Since the inception of the Internet, speculators have sought to monetize web pages, often by selling space to advertisers. Monetized domain parking has emerged as a multi-million-dollar business over the last several years,' evolving from simple cybersquatting to a sophisticated and mostly automated method of delivering pay-per-click advertising on thousands of domains. Similar to the game of Whac-A-Mole,2 whenever the state introduces new legal tools to curb domain speculation abuse, domain name speculators alter their business models to survive. Although federal trademark law has a part to play in the battle against domain name speculation, some academics are concerned about expanding the law for this purpose.3 Additionally, the legal tools currently used most frequently to battle domain name speculation, the Uniform Domain-Name Dispute-Resolution Policy (UDRP) 4 and the Anticybersquatting Consumer Protection Act (ACPA), have been in use for ten years, yet the problem persists.' This Note examines the evolution of the domain name speculation business model and the tools used to fight it, outlines the scope of the problem and the barriers to solutions, and concludes that due to the difficulties of policing domain name speculation using trademark law, a combination of policy changes, technological solutions, and social C 2010 Sara D. Sunderland. 1. David Kesmodel, Thanks to Web Ads, Some Find New Money in Domain Names, WALL ST. J. ONLINE, November 17, 2005, http://online.wsj.com/public/article/SB113 200310765396752-FYV6dsilRSON1fsiVubLf_5nl8_20061116.html?mod=rss-free. 2.
    [Show full text]
  • The Initial Interest Confusion Doctrine and Its Misapplication to Search Engine Sponsored Links, 91 Cornell L
    Cornell Law Review Volume 91 Article 4 Issue 6 September 2006 Searching for Confusion: The nitI ial Interest Confusion Doctrine and Its Misapplication to Search Engine Sponsored Links Zachary J. Zweihorn Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Zachary J. Zweihorn, Searching for Confusion: The Initial Interest Confusion Doctrine and Its Misapplication to Search Engine Sponsored Links, 91 Cornell L. Rev. 1343 (2006) Available at: http://scholarship.law.cornell.edu/clr/vol91/iss6/4 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. NOTE SEARCHING FOR CONFUSION: THE INITIAL INTEREST CONFUSION DOCTRINE AND ITS MISAPPLICATION TO SEARCH ENGINE SPONSORED LINKS Zachary J. Zweihorn * INTRODUCTION ................................................... 1344 I. TRADEMARK LAW BEFORE THE INTERNET .................. 1347 A. Traditional Trademark Policies ..................... 1348 B. Initial Interest Confusion in the Offline World ..... 1349 1. Grotrian v. Steinway & Sons .................... 1350 2. Mobil Oil v. Pegasus Petroleum ................. 1350 3. Analyzing the Offline IIC Cases .................... 1351 II. INITIAL INTEREST CONFUSION ON THE NET: DISTRACTING DOMAIN NAMES AND MISLEADING METATAGS .............. 1352 A. Brookfield v. West Coast IIC Is just a Click Away ...... 1352 B. Brookfield: Misapplying Precedent, Ignoring Tradem ark Goals ................................... 1354 1. Stretching the Offline Cases ........................ 1354 2. Economic Justifications ............................ 1355 3. Next Exit: Bad Analogy ........................... 1357 4. The Effect of Brookfield: IIC All Across the Net ....
    [Show full text]
  • The Truth in Domain Names Act of 2003 and a Preventative Measure to Combat Typosquatting, 89 Cornell L
    Cornell Law Review Volume 89 Article 3 Issue 6 September 2004 The rT uth in Domain Names Act of 2003 and a Preventative Measure to Combat Typosquatting Christopher G. Clark Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Christopher G. Clark, The Truth in Domain Names Act of 2003 and a Preventative Measure to Combat Typosquatting, 89 Cornell L. Rev. 1476 (2004) Available at: http://scholarship.law.cornell.edu/clr/vol89/iss6/3 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. NOTE THE TRUTH IN DOMAIN NAMES ACT OF 2003 AND A PREVENTATIVE MEASURE TO COMBAT TYPOSQUATTING Christopher G. Clarkt INTRODUCTION ................................................. 1477 I. CYBERSQUATTING AND TYPOSQUATTING ON THE INFORMATION SUPERHIGHWAY ............................ 1482 A. The Structure of the Internet: A Brief Overview .... 1482 B. Reserving Your Space in Cyberspace: The Domain Name Registration Process .......................... 1485 C. Typosquatting and Cybersquatting: Profit by D eception .......................................... 1487 D. The Case of the Notorious Typosquatter ............ 1491 II. LIVING IN A TYPOSQUATrER'S PARADISE: LIMITED DETERRENCE THROUGH FRAGMENTED LITIGATION AND INEFFECTIVE ARBITRATION ............................... 1492 A. The Mid-to-Late 1990s: The Federal Trademark D ilution Act ........................................ 1493 B. 1999-2003: The Anticybersquatting Consumer Protection Act ...................................... 1496 C. ICANN and Arbitration Under the Uniform Domain Name Resolution Policy .................... 1501 D. The Return of the Notorious Typosquatter ........
    [Show full text]
  • Protection of Trade Marks: Online Use and Anticybersquatting a European Perspective
    CMS Adonnino Ascoli & Cavasola Scamoni CMS Albiñana & Suárez de Lezo CMS Bureau Francis Lefebvre CMS Cameron McKenna LLP CMS DeBacker CMS Derks Star Busmann CMS von Erlach Henrici CMS Hasche Sigle CMS Reich-Rohrwig Hainz Protection of Trade Marks: Online Use and Anticybersquatting A European Perspective A CMS IP Group Publication Introduction Trade marks are essential for building business reputations in the modern business world. They enable customers to identify goods and services and develop brand loyalty. Trade marks also strengthen the effectiveness of advertising. Over time, trade marks develop their own brand identity independent of the goods and services they promote. This is particularly relevant as trade marks are increasingly promoted and used in modern media, such as the Internet. Trade marks on the Internet may be used to distinguish the goods and services of one undertaking from those of another, or without reference to relevant goods and services. When trade marks are used in relation to specific goods or services on the Internet, trade mark infringement can be dealt with in much the same way as it would be in any other media. Problems arise when trade marks are used on the Internet without any reference to the goods or services to which they relate. Not all countries have legislation which allows trade mark owners to protect their trade marks against such unauthorised use. Trade marks can be used on the Internet without reference to goods and services in domain names, links, metatags, pop-up ads, framing and spam messages. Such use of trade marks may be either legally justified or constitute trade mark infringement.
    [Show full text]