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A Lesson from the Environmental Protection Agency (EPA) in Domain Name Disputes

While the U.S. Environmental Protection Agency (EPA) has been making news as the result of controversial changes brought about under the new Trump administration—including the planned removal of “several agency websites containing detailed climate data and scientific information”—the EPA also has generated some (lesser-known) domain name news: The agency won a decision under the Uniform Domain Name Dispute Resolution Policy (UDRP) for the domain name <noattacks.org>.

Although UDRP complaints filed by governmental entities are not unprecedented, they are not common. Indeed, governments don’t even make an appearance on WIPO’s list of the types of trademark owners that file UDRP complaints.

That may be because government agencies are not typically thought of as trademark owners. But sometimes, they are.

In the EPA case, the trademark at issue, NO ATTACKS (which the EPA used in connection with anti-asthma campaigns), apparently was not registered. But as the UDRP panel noted, “There is no requirement under the UDRP that a complainant must show registration of a trademark to demonstrate its rights therein. Rights may be shown by persuasive evidence of common law trademark rights in a mark.”

Fortunately for the EPA, the UDRP panel agreed that it had established common law trademark rights in NO ATTACKS—as the result of its “public use of such mark over a period of 15 years” and an investment of “$450 million in advertising” related to the mark.

Interestingly, the EPA previously had registered the <noattacks.org> domain name but, like many other domain name registrants that find themselves filing UDRP complaints, the EPA allowed it to lapse “[t]hrough inadvertence.” The new registrant used the domain name in connection with a pay-per-click (PPC) website and also offered it for sale for $25,000, according to the UDRP decision. The panel found this sufficient to establish the required bad-faith element.

In many ways, the EPA case is like many other domain name disputes: A domain name owner creates a domain name, invests significant sums of money promoting it, fails to protect it by pursuing a relevant trademark registration, and then lets its expire. The UDRP decision doesn’t explain why any of this happened, but it should be a warning to other trademark owners to take domain name management seriously.

(Interestingly, before the UDRP decision for <noattacks.org> was implemented and the domain name transferred back to the EPA, the “No Attacks” website was posted at a different address, which contained this notice: “Due to technical difficulties with the URL www.noattacks.org, this website is temporarily hosted at http://noattacks.scgcorp.com/”. I’m not so sure “technical difficulties” is the most accurate label.)

Perhaps the EPA could have benefited from one of my previous blog posts, such as this one: “New Year’s Resolution: Renew Your Domain Name! (And Other Best Practices for Domain Name Management).”

By Doug Isenberg, Attorney & Founder of The GigaLaw Firm

Learn more by visiting The GigaLaw Firm website. Doug Isenberg also maintains a blog here.

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I have to wonder why any large Todd Knarr  –  May 5, 2017 6:24 PM

I have to wonder why any large entity would simply forget to renew. Surely they have calendaring systems, or can set domains on auto-renew. Perhaps it’s not that they forgot but that someone in Accounting looked at the renewal, asked “Why are we paying for this? Are we even using it?”, and when told it wasn’t being actively used ordered it not be renewed without knowing the consequences.

Management of your strategic assets should never Alex Tajirian  –  May 8, 2017 4:29 PM

Management of your strategic assets should never be assigned to accounting.

It usually isn't, but accounting has to Todd Knarr  –  May 9, 2017 4:24 PM

It usually isn't, but accounting has to approve the purchase order and all too often the people assigned to manage the asset don't have the authority to override the VP of Finance when he rejects it instead. Ideally domains should be jointly "owned" by the CIO and Marketing, with things like renewal purchase orders authorized by them so accounting can't/won't argue with them.

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