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

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    4th Circuit Gives Big Win to TM Owners | Log in/Create an Account | Top | 3 comments | Search Discussion
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    Not Trademark Win, But Freedom Loss
    by hofjes on Monday August 27 2001, @05:05AM (#2033)
    User #60 Info
    This decision is not a victory for trademark interests. Trademark interests are irrelevant.

    Instead, this decision is a loss for first amendment freedoms.

    A domain name does NOT indicate the source or quality of goods or services. Instead, it is merely a technical identifier which causes the routing of information over the net. Accordingly, it cannot qualify as a mark.

    The likelihood of confusion test should be applied after the consumer arrives at the site. The initial interest confusion test should likewise begin after a site is propagated.

    There is no trademark infringement based on these facts. The defendant was not trading off of the goodwill of PETA. He was instead voicing his opinion and engendering debate about PETA's purpose and actions.

    As for the commercial use of the site - it is irrelevant too. In America, we support capitalism. If capitalism spawns creativity, discourse, and debate, then we should encourage it. Many artists and rhetoricians would not have the ability to broadcast their art and opinions if they could not make money by so doing. We should not punnish the PETA parodist because he made some extra cash through his art. Instead, we should commend him.
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    Re: 4th Circuit Gives Big Win to TM Owners
    by Grumpy on Monday August 27 2001, @08:53AM (#2035)
    User #2759 Info
    This is not the first appellate court opinion in the US to adopt initial interest confusion on the Internet. Over two years ago, the Ninth Circuit recognized such a cause of action (and ruled for a trademark owner) in Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999).

    Brookfield's initial interest confusion discussion is in the context of meta-tags, but the language is applicable to domain names as well (and the court found a likelihood of confusion on the domain name issue in the case). The Ninth Circuit's opinion is perhaps a little strong in its embrace of initial interest confusion on the Internet. At the same time, the logic of initial interest confusion can be applied with sensitivity and concern for free speech and the rights of other legitimate users of a term that happens to be a trademark.

    I tend to agree that this case is beyond the reasonable limits of the initial interest confusion doctrine. That does not mean we should throw out the doctrine as it may apply to domain name disputes in the future.
    [ Reply to This | Parent ]

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