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Domain Names and Trademarks
Internet has evolved rapidly and instantly became a big market place. One of the many ways people can make profit is by register a domain. This way of making money has became quite complicated, therefore the Network Slutions Inc. and other domain name registars adopted a new dispute policy that incorpates the Uniform Domain Name Dispute Resolution Policy (UDRP) developed by Internet Corporation for Assigned Name and Number (ICANN) came up with a few regulations to prevent it from a disaster.
This law is called Anticybersquatting Consumer Protection Act to puts things under control. Many people created domain for difference of reasons. Some people created for the purpose of promoting their products online, or to run a business. However there are other people know as “bad faith” create a domain to sell it, lease it, or even to annoy someone that they don’t like. There are four basic guideline that makes people with bad intention or “bad faith” to fall into this category:
1. If a domain name owner has obtained a domain name primarily for the purposes of selling, renting or otherwise transferring it to a party who owns a registered trademark or to a competitor of that trademark owner.
2. Registering a domain name in order to prevent the owner of a registered trademark from protecting that trademark in the form of a domain name.
3. Adopting a domain name primarily for the purpose of disrupting the business of a competitor.
4. Intentionally attempting to draw visitors to the web site of the domain by creating a likelihood of confusion between the domain and the trademark.
There are several option that you can do if you come across this problem and that is to file a “Claims”. However before you can do that, register a trademark is required. This will prove that the you own that name. Don’t be surprise if you see a domain with your name because even if it’s your name it doesn’t it belongs to you.
Several cases like this happened in the past. Jerry Falwell was one of the victim. Gary Cohn used his name (Jerryfalwell.com) as a domain name just so Cohn can make fun of him. Jerry got furious and went to sue Cohn for violation of trademarks. Violation what? Unfortunately, it wasn’t his to began with unless he had registered. The court dismissed his case because there was no evidence that Cohn was targetting him or did anything unlawful. The ideas that you’re born with a name then that name is belong to you is no longer consider true on the world of network. Maybe this is trivia matter and the court doesn’t want to waste their time on it. Let’s talk about people who has real intention of profiting a domain.
Julia Roberts a famous actress, however your name were being used for a domain “juliaroberts.com”. Now the question comes into play whether the owner is condisder “bad fight” or not. The UDRP followed a few guide line to determine the case such as:
1. whether the domain was identical to that of the actress’s name;
2. whether the actress had a trademark or trademark rights in her name;
3. whether the domain owner had any legitimate rights to the domain name; and
4. whether the use by the domain owner was in bad faith.
Unfortunately her case is somewhat similar to Jerry Falwell because she didn’t registered a trademarks for her name. It’s true that her name is identical with the domain, that part is true. But the rest failed. She doesn’t have a trademarks. It could be a coincidence that the owner picked up the name randomly, and there’s no evidence to tell whether he/she is in “bad faith”. The UDRP has to figure out that whether or not when people hears the name “Julia Roberts” instance log onto juliaroberts.com. But problem is how would they figure it out? Tough luck! Fortunately for her in this case, they found that there was an identification in the minds of the public betwwen the actual name and thep erson of the actress. Thus, they concluded that she possessed “trademark rights” even if no actual registerd mark.
Another similar case is Jimi Hendrix. I’m sure a lot of music fan know who Jimi Hendrix is. Same thing happen, there was a “jimihendrix.com” domain and was registered as a fan club. The domain owner was also the owner of an extensive number of other celebrity and “vanity” domains including “elvispresley.com”, “jethrotull.com” and is offer to sell jimihendrix.com domain for a million dollars. This was the true intention of domain owner. He/she wanted to sell it not a “fan club”. If it was truly a “fan club” then it would’ve become more complicated. UDRP came to a conclusion that it was “bad faith” and thus it asked the owner to transferred the name.
Word of advice, if you think your name is worth anything registered a trademarks for it. Unlike Falwell I wouldn’t be offended if someone used my name as a domain just so they could make fun of it. If you’re a nobody then there’s nothing for you to worry about unless you’re “somebody”. Also have some sportmanship. Don’t register a domain to sell it or to annoyed people. The law has been established and it’s called, “ Anticybersquatting Consumer Protection Act”. No more of that legal domain transaction. So beware!
