Questions 1. Does the Anticybersquatting Consumer Protection Act forbid ALL cybe
ID: 376988 • Letter: Q
Question
Questions
1. Does the Anticybersquatting Consumer Protection Act forbid ALL cybersquatting?
2. Why didn’t the plaintiff in the above case win damages?
344 MODULE 3 PRIVATE LAW ATECTINO ENTREPRENERS BERSQUATTING AND THE ANTICYBERSQUATTING CONSUMER PROTECTION ACT CYBEIMER another's trademarked name or similar name before the trademark owner ters it as an Internet domain name. It is common for cola" to want to use their name as an Internet URL (address) because Cybersquatting occurs when one person registers as an Internet domain name brand names such as "coca- trying to locate "coca-cola" on the Internet instinctively use a trademarked name Unfortunately, traditional brick-and-mortar firms have been slow to adapt to the Internet and often find their trademarked names or close approximations are taken by cybersquatters. Cybersquatters are often and-mortar compony com be foundwilling to sell the Internet domain name (the trademark of someone 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 in first attempts to find a company's Web fprmation about o true brick 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 owners who love their favorite car and are unassociated with Ford Motor Company could legally use 'thunderbirdclub.org' as a Web site even though it uses Ford's trademarked Thunderbird name. Also, trademark law allows com- parative advertising where a competitor points out how her product is factually n a competitor's trademarked product. For example, a com 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. 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 2. The extent to which the domain name consists of the legal name of the person 3The person's prior use, if any, of the domain name in connection with the bona 4. The person's bona fide noncommercial or fair use of the mark in a site acces- 5. The person's intent to divert customers from the mark owner's online location resented by the mark, either for commercial gain or with the intent to ta 6. The person's offer to transfer, sell, or otherwise assign the domain name to the domain name in the bona fide offering of any goods or services, or t domain name or a name that is otherwise commonly used to identify that person fide offering of any goods or services sible under the domain name to a site accessible under the domain name that could harm the goodwill reg or disparage the mark, by creating a likelihood of confusion as to the soure. sponsorship, affiliation, or endorsement of the site mark owner for financial gain without having used, or having an intent to son's prior conduct indicating a pattern of such conduct use 7· The person's provision of material and misleading false contact informat- when applying for the registration of the domain name, the person's intentioExplanation / Answer
1) Anti cyber squatting does not forbid all but cybersqautting based on domain names. Here in this case Anticybersquatting Consumer Protection Act required that a firm that registered and used a domain name that contained a competitor’s well-known trademark was in bad faith. The Anticybersquatting Consumer Protection Act applied in this case. The question before the court was which company had the right to the domain name.
2)the plaintiff didn’t win damages in the above case because plaintiff had used defendant's mark in the domain name it registered with a "bad faith intent to profit" thereby within the meaning of the ACPA. Plaintiff had violated the Anticybersquatting Consumer Protection Act, A person violates the ACPA if with bad faith intent to profit from the mark" he registers (or uses) a domain name that is identical or confusingly similar to a mark that was distinctive at the time of registration by the defendant of the domain name in question. The plaintiff acted in bad faith, intending to profit from the sporty's trademark and intending to keep Sportsman's from using the domain name. So he must release its interest in sportys.com and transfer the name to Sportsman's.
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