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    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)


     
    Uniform Dispute Resolution Policy (UDRP) Domain Name in HTML Code not an Infringing Use
    posted by DavidP on Wednesday February 06 2002, @08:50AM

    A federal court has ruled that using a protected trademark within a hyperlink is not enough to permit a trademark holder to sue for trademark infringement or dilution. In Ford Motor Co. v. 2600 Enterprises , Judge Robert Cleland of the Eastern District of Michigan held that Ford could not assert claims for trademark infringement and trademark dilution against defendant's use of the domain name 'fuckgeneralmotors.com.' Why, you might ask, would Ford object to someone's use of that particular domain name? Because anyone who tries to reach 'fuckgeneralmotors.com,' either through the DNS directly or by clicking a link at defendant's website, is taken to Ford's home page at Ford.com, that's why. [go ahead - try it here.



    The court found that the defendants - the same Eric Corley and 2600.com who have been embroiled of late in controversy regarding publication of the DeCSS source code - were neither diluting nor infringing Ford's trademark.

    The defendants' domain name -- "fuckgeneralmotors.com"-- does not, the court noted, incorporate any of Ford's trademarks; defendants "only use of the word 'Ford' is in its programming code, which does no more than create a hyperlink" to Ford's site. "Unlike the unauthorized use of a trademark as a domain name," the court said, the use of the trademark within "programming code" does not "inhibit Internet users from reaching the Web sites that are most likely to be associated with the trademark holder." Here, "Trademark law does not permit (Ford) to enjoin persons from linking to its home page simply because it does not like the domain name or other content of the linking Web page."

    Trademark dilution requires Ford to show that the defendants were making "commercial use" of the Ford trademark. The fact that the defendants' use of the Ford trademark may have harmed Ford in some manner is not sufficient to make its use "commercial" within the meaning of the statute. The court analogized defendants actions to a "a graffiti vandal painting 'Fuck General Motors' on a sign at Ford headquarters." While Ford may have some remedy against such conduct in other areas of the law, "it would be a stretch to conclude that trademark law had been violated." The same, it said, is true here.

    As to Ford's trademark infringement claim, the court held that defendants' use of the Ford trademark in their programming code "does not inhibit Internet users from reaching the websites that are most likely to be associated with the trademark holder." Where the "unauthorized use in no way competes with the mark owner's offering of goods or services," the defendant is not, as required by the statute, using the trademark "in connection with the sale, offering for sale, distribution, or advertising of any goods or services," and therefore is not infringing.

     
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      Related Links  
  • 2600.com
  • Ford Motor Co. v. 2600 Enterprises
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    This discussion has been archived. No new comments can be posted.
    Domain Name in HTML Code not an Infringing Use | Log in/Create an Account | Top | 4 comments | Search Discussion
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    Re: Domain Name in HTML Code not an Infringing Use
    by fnord (groy2kNO@SPAMyahoo.com) on Wednesday February 06 2002, @08:36PM (#4828)
    User #2810 Info
    This case is rather more complex. Take a look at earlier versions of the 2600 site in question on archive.org. They originally offered up the front page of ford.com (apparently verbatim, I haven't done a file compare of the source codes). Others have lost court battles for doing the same thing, the only difference being the actual domain name. If Ford had gone after them from another angle they may well have prevailed. And General Motors could still have a go at them. An interesting bit of U-R-L-a theatre, to coin a term, but it hasn't changed the landscape much so far. -g
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