ICANNWatch | "Sucks" Sites Don't Violate US Trademark Law

"Sucks" Sites Don't Violate US Trademark Law
posted by michael on Monday April 04 2005, @08:00PM

We hold today that the noncommercial use of a trademark as the domain name of a website - the subject of which is consumer commentary about the products and services represented by the mark - does not constitute infringement under the Lanham Act.

So says the 9th Circuit in Bosley Medical Institute v. Kremer, decided yesterday.

It's important to keep decisions like this in mind when dealing with WIPO's Borg-like attempts to route around US trademark law by trying to "restate" or "explain" the UDRP, the arbitration-like system which ICANN has imposed on domain name disputes. WIPO is trying to get its arbitrators to think that either they or WIPO are the source of the substantive law that applies in domain name disputes. But that's not what the UDRP says -- it clearly refers to the national law that would be applied against a defendant in a court case. WIPO opposed that rule during the drafting of the UDRP but was forced to accept it. It's been chipping away at it ever since.

An example of this is WIPO's recent push for "consistency" in UDRP decisions -- something that flies in the face of the agreement that the UDRP should seek to replicate the decisions that would be reached in national courts -- decisions which are not the same as the national law differs. The decisions should be consistent with the relevant national law -- not with each other.

Decisions like this -- which hold First Amendment values as superior to commercial claims that the law should shield them from effective critique -- differ from the law that applies in the UK and on most of the European Continent (especially Germany and Belgium). But here in the US they're our rules, and we have a right to them until our legislature changes them.

[Cross-posted from discourse.net.]

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I hope WIPO takes notice of this in my case
by SwampNut on Tuesday April 05 2005, @06:32PM (#14809)
User #4107 Info

I am the respondent in a case before WIPO, and my answer is due in two days. I am making extensive reference to this case and the cases which supported this one. I have my doubts that WIPO will care; they seem to be more interested in creating law than in following US law even for cases involving US parties.

Any advice on this would be greatly appreciated. The domains in question are http://www.arizonamotorsports.com and http://www.tucsonmotorsports.com . They detail my experiences with the state's largest chain of motorcycle dealers, who lie and steal at every opportunity. After three years of putting up with my site, they filed the WIPO complaint and also a local lawsuit.

The WIPO complaint is here:
http://www.tucsonmotorsports.com/dispute/Complaint .pdf

I am working on my reply right now, up to five pages so far.

[ Reply to This | Parent ]

First amendment, really ?
by PPM on Tuesday April 26 2005, @07:51AM (#14977)
User #4122 Info

Reading this judgment, I consider that you use kind of a shortcut to say that sucks.coms don't violate Trademark Law. Nothing has been decided yet on the ACPA, which would be the relevant part, especially for your website and the UDRP procedures.

[ Reply to This | Parent ]

Re:How do Registrars handle the 75 cent DONATIONS
by michael (froomkin@lawUNSPAM.tm) on Tuesday April 05 2005, @07:32AM (#14807)
User #4 Info | http://www.discourse.net/

The following is nonsense:
Despite what ICANN is, the Registrars have the right to deduct their 75 cent fee as a DONATION to a valid non-profit company.
I pity your lawyer.

[ Reply to This | Parent ]

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