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There is a misconception among some trademark owners and their counsel that passive holding of domain names alone or combined with lack of rights or legitimate interests supports abusive registration. Thus, Respondent's inactive use of the disputed domain name demonstrates bad faith. Respondent also had actual knowledge of Complainant's YOU ASKED FOR IT mark as Complainant has attempted to buy the domain from Respondent... more
Words (and by extension their constituent letters) are as free to utter and use as is the air sustaining life. No one owns them. There is no toll fee to be paid to dictionary makers who curate them. There are, however, two carve-outs from this public domain, namely words and letters businesses use as designations of origin for their marketplace presence, protected by trademark law; and words and letters arranged expressively by authors, protected by copyright law. more
Trademark owners in the U.S. have a choice in suing for alleged cybersquatting: either the Uniform Domain Name Dispute Resolution Policy (UDRP) or the Anticybersquatting Consumer Protection Act (ACPA). Of the two, the UDRP is far and away the forum of choice for a very good reason: it is speedy, efficient, and inexpensive. Complaint to award can be concluded in less than 45 days. more
ICANN's mission, and the avoidance of "mission creep", is currently the subject of intense debate in the Internet community. Multiple cross-community working groups are dealing with the proposal by an agency of the United States government, NTIA, to give up the last vestiges of its control of the IANA function. Many of the new organizational structures under consideration purport to deal with ICANN's expanding mission. more
One of the fallouts of disruptive inventions is the need for new laws to counter their unexpected consequences. As it concerned the Internet, these consequences included a new tort of registering domain names identical or confusingly similar to trademarks and service marks with the intention of taking unlawful advantage of rights owners. Prior to 2000 the only civil remedy for "cybersquatting" or "cyber piracy" was expensive and time-consuming plenary actions in courts of competent jurisdiction under national trademark laws. more
ICANN organized a meeting on 15-16 November 2012 in Los Angeles, the Trademark Clearinghouse policy negotiations... I participated on behalf of noncommercial users in the policy meeting in person in LA on 15 November, and then for part of the discussion on 16 November via telephone. Here is my personal evaluation of the meeting and my initial reactions to the output of the meeting pending further discussion with the NCSG Policy Committee. more
During the sunrise period for .eu domains there was quite a bit of controversy, as a number of high profile names were grabbed by companies that had no legitimate right to them. One of the domains that caught my attention at the time was dublin.eu (see Irish Times article). So what about the .tel sunrise?
Were companies like Lantec, who grabbed the dublin.eu domain, actively seeking high profile names this time round? more
This post is based on the scenario that a trademark.tld domain name is registered with a UK ICANN accredited registrar, (they have an exclusive UK jurisdiction clause in their contracts), the trademark.tld criticism website located at that domain name is strictly non-commercial, the servers are located in the UK, and the registrant is a British citizen. In the above circumstances, the corporations and/or their lawyers are taking a big risk when they use the Domain Name Dispute Resolution Policies (UDRP) in order to silence criticism at trademark.tld. more
Potential trademark Rights Protection Mechanisms (RPM) at the 2nd level can be divided into three main areas -- each defined by their time relative to Top-Level Domain (TLD) launch... Of these, we believe the third, "After Launch," is the most fruitful path to explore. We believe it offers the most potential to protect the rights of trademark holders, the best balance between TM rights and the legitimate rights of others who may want to register names , and the most benefit to the trademark community at the lowest cost to them... more
Complainants have standing to proceed with a claim of cybersquatting under the Uniform Domain Name Dispute Resolution Policy (UDRP) if the accused "domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights" (4(a)(i) of the Policy). Quickly within the first full year of the Policy's implementation (2000) Panels construed "rights" to include unregistered as well as registered marks, a construction swiftly adopted by consensus. more
At his first meeting as CEO of ICANN, Fadi Chehade showed up ready to work AND to listen. ICANN's new CEO described his objectives for the organization which included 1) affirmation of purpose, 2) operational excellence, 3) internationalization, and 4) evolution of the multi-stakeholder model on which ICANN is built. He also described significant organizational changes to ICANN leadership and staff... more
The Internet, at nearly every stage of its evolution, has effected change in existing intellectual property industries as those industries struggle to keep up with the march of technological advancement. For example, the entertainment industry has seen widespread piracy and bootlegging of just and soon-to-be released movies as a result of the increased availability of broadband Internet access in the home, and efficient peer-to-peer file-sharing technologies online. In response the entertainment industry has backed a wave of proposed legislation including the maligned Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA). more
It continues to surprise that some counsel in proceedings under the Uniform Domain Dispute Resolution Policy (UDRP) are unaware or oblivious of its evidentiary demands, by which I mean they file and certify complaints with insufficient evidence either of their clients' rights or their claims. Because the UDRP requires conjunctive proof of bad faith registration and bad faith use (as opposed to the disjunctive model of the Anticybersquatting Consumer Protection Act), it should be ingrained for counsel experienced in the jurisprudence to know they cannot hope to succeed with marks postdating registration of domain names. more
This is a complex lawsuit by trademark owners attacking domaining and the role of the Google AdSense for Domains program in funding domaining activity. When I first blogged on the case in 2007, I wrote: "the lawsuit could effectively fall apart if the judge rejects formation of a class. Trademark class action lawsuits are rare for good reason..." Last week, the court ruled on class certification, and perhaps not surprisingly, the court denied certification -- giving Google and the other defendants an early Christmas gift. more
No one will disagree that disputes before arbitral tribunals and courts should be determined on the merits. I have noticed that some Panels appointed under the Uniform Domain Name Dispute Resolution Policy (UDRP) have employed the words "objective" and "objectively" in their recent decisions. In pondering these linguistic choices, it seems to me that there are two possible reasons for their use; the first is more acceptable than the second. more
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