1. Does the Anticybersquatting consumer protection Act forbid ALL cybersquatting
ID: 376983 • Letter: 1
Question
1. Does the Anticybersquatting consumer protection Act forbid ALL cybersquatting?2. Why didn’t the plaintiff in the above case win damages? 344 CYBERSQUATTING AND THE ANTICYBERSQUA 8. The pers n registers as an Internet domain name another's trademarked name or similar name before the trademark owner regis trying to locate "coca-cola" on the Internet instinctively use a trademarked name ters it as an Internet domain name. It is common for brand names such as"c cola" to want to use their name as an Internet URL (address) because 9. The exte in first attempts to find a company's Web page. Unfortunately, traditional brick-and-mortar firms have been slow to adapt to the Internet and often find their trademarked names or close ns are taken by cybersquatters. Cybersquatters are oftern The ACPA formation about a true bridl d mutor company ca be foud else) back to the trademark owner for a pretty penny. It was this sort of exploitation that Congress sought to remedy when it passed the willing to sell the Internet domain name (the trademark of Anticybersquatting Consumer Protection Act (ACPA) in 1999 The ACPA allows trademark holders to sue civilly one who in bad faith regis ters, trafficks in, or uses a domain name that falls into either of two categories: a distinctive mark or a famous mark. Not all uses of others' trademarks are neces- sarily illegal because they could be done in good faith. For example, Thunderbird or its trar Motor owners who love their favorite car and are unassociated with Ford Company could legally use 'thunderbirdclub.org' as a Web site even though it uses Ford's trademarked Thunderbird name. Also, trademark law allows com- tive advertising where a competitor points out how her product is factually than a competitor's trademarked product. For example, a competitor of Dodge motor cars could register a comparative domain name site "dodgesucks.com" in which a Dodge competitor's factually better features such as cargo space, gas mileage, and stopping distance are noted. Backgre The act identifies nine factors to guide courts in deciding if cybersquatting is in bad faith 1. The trademark or other intellectual property rights of the person, if any, in the ools and h 2. The extent to which the domain name consists of the legal name of the person 3. The person's prior use, if any, of the domain name in connection with the bona or a name that is otherwise commonly used to identify that person fide offering of any goods or services 4. The person's bona fide noncommercial or fair use of the mark in a site acc sible under the domain name The person's intent to divert customers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill rep resented by the mark, either for commercial gain or with the intent to tarnish 5· or disparage the mark, by creating a likelihood of confusion as to the source sponsorship, affiliation, or endorsement of the site The person's offer to transfer, sell, or otherwise assign the domain name to the 6. $10 milli mark owner for financial gain without having used, or having an intent to uis the domain name in the bona fide offering of any goods or services, or son's prior conduct indicating a pattern of such conduct 7· The person's provision of material and misleading false contact when applying for the registration of the domain name, the person's
Explanation / Answer
1) The access of consumers and businesss to the use of Internet has led to quite a few interesting legal issues, including copyright infringement, phishing, spam, cybersquatting, and much more. Most businesses rely on the Internet to sell their products or services or as a method of advertising and providing information to consumers.Businesses tend to use their corporate, product, or service trademarks in domain names to create a strong presence on the Internet and to help consumers find them more easily.Cybersquatters are individuals or companies that register domain names containing the trademarks of others for the purpose of profiting from the goodwill associated with the trademark, or by selling the domain name to the trademark owner or its competitors.
Cybersquatting includes the following offences :
i) the registrant has a wicked intent to profit,
ii)the domain name is identical, a famous mark, dilutive or is similar to a famous symbol to confuse the consumers,
iii)the registrant registers, attracts huge traffic, or uses this peculiarly similar domain name,
iv) the domain name has a goodwill with which a large group of people identify.
Thus the Anticybersquatting consumer protection Act forbids all types of cybersquatting.
2) As per the given case :
'In January 1996, Omega formed a wholly-owned subsidiary, the plaintiff Farm, to engage in the business of growing and selling Christmas trees. At that time, Omega sold it's rights of the sportys.com domain name to Farm. It did not, however, actually transfer the name at that time.
In March 1996, Sportsman's discovered that Omega had registered the sportys.com domain. Shortly thereafter, before Sportman's could do anything, Farm commenced this suit, seeking a declaratory judgment that it had the right to use the sportys.com domain name. Sportsman's counterclaimed, and asserted that Farm and Omega, by the aforesaid conduct, were guilty of trademark infringement, trademark dilution under the Federal Trademark Dilution Act, and unfair competition under Connecticut law. After this lawsuit was filed, the sportys.com domain name was transferred to Farm, and Farm commenced business operations, which included the operation of a website at the sportys.com domain at which Farm sold Christmas trees.'
The Federal Trademark Dilution Act had passed the judgement that the trademark 'sportys.com' be transferred to the plaintiff Sporty's Farm from the defendant Sportman's Market because they found that they are in wholly unrelated business.
However, later on, United States Court of Appeals for the Second Circuit found that that plaintiff's domain name sportys.com was confusingly similar to defendant's "sporty's" mark,giving special importance to the fact that apostrophe's cannot be used in domain names.
The court came to a decision that Omega had decided to enter into the catalog retail services for aviation products market and hence registered a domain name that contained to be defendant's trademark 'Sporty's'. This mark had no relation to Omega's subsidiary business which was of Christmas Trees and thereafter Omega transferred the domain name to Sporty's Farm, after the lawsuit had begun, which then commenced utilizing the mark in a business that did not compete with that of the mark's owner 'Sportman's Market'. Thus the court concluded that Omega registered 'sportys.com' for the purpose of keeping Sportsman's from using that domain name.
Hence, the plaintiff did not win any damages in the above case.
Hope this helps !
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