February 26, 2007
The “Cybersquatting Double Standard” article that Shana posted was very interesting. If a celebrity such as Shakira registers shakirasucks.com as a preemptive strike against potential purchasers, shouldn’t that be cybersquatting? Obviously, she has a legitimate interest in the “Shakira” part of the domain, but how legitimate is the interest in preventing criticism of oneself? Should that be bad faith? If the criticism is libelous, then aren’t there other laws to handle such speech? Read some Section 230 commentary and you may decide that all web-based speech is immune.
The “sucks sites” seem to be an easier row to hoe, whereas sites that aren’t criticizing seem to be the trickier ones. For instance, famed cybersquatter Jeff Burgar has bought a plethora of celebrity domain names. Some are simply parked, and some are stagnant “fan sites.” One example is brucespringsteen.com. Burgar won that domain in a UDRP action. The decision said that even though the name is identical to Bruce Springsteen’s (and the “official” brucespringsteen.net), there was no likelihood of confusion, he did have a legitimate interest, and there was no bad faith (Burgar is no stranger to UDRP proceedings, and he knows how to avoid a finding of bad faith).
So, my theory is this – attempting to sell a domain name for higher than one’s out-of-pocket expenses should not be indicia of bad faith. It’s economics. If I buy brucespringsteen.com and don’t use it to deceive or redirect to a competitor, then why shouldn’t I be able to sell it for a profit? There is no inherent right to use one’s name in business. Why not let Bruce cough up some cash for “his” domain name?
Kevin Wimberly
March 3, 2007 at 8:40 pm
I wouldn’t look at the Bruce Springsteen Case as being too instructive. This seems like what I refer to as the “academic activist panelist” disease.
Look at the Julia Roberts case, and then look at the Bruce Springsteen. case. (See also, The Dan Marino Case).
So how do we reconcile these cases? It comes down to the panelists. WIPO used to be primarily stocked with panelists who practice trademark law and/or former judges. Accordingly, they understand the law.
There are a few panelists who have just nutty ideas about the UDRP. They have an axe to grind, they haven’t practiced law in decades (if ever), and they’re out there trying to single-handedly change the UDRP (or worse).
It seems that full-time intellectual property professors tend to subscribe to the theory that intellectual property rights shouldn’t exist at all. (That is a sweeping generalization, but I stand by it). Now, I’m a pretty heavy anarchist, but I do respect the fact that we should protect some intellectual property rights.
If you ever wind up handling a UDRP case and you get a full-time professor or some advocacy group’s counsel as your panelist, I’d advise dropping the case and re-filing so you get someone objective. I do not find that full-time profs who double as UDRP panelists make principled decisions.
Take a look at this guy’s webpage. Quite an interesting record, no? But, it’s great advertising to Respondents (Look, pick me as a panelist! I think the UDRP requires more evidence than a murder conviction!).
It is bad enough when someone who has never really practiced law (or only did so briefly) fancies themselves qualified to teach others how to practice law. It is far worse when they use their UDRP panelist position to both advocate for a certain cause (the dissolution of trademark rights), and perhaps worse than that, to advocate for their own career. I’m not saying that anyone does it just for the money (however, the supplemental income might be nice for someone on a teacher’s salary). The UDRP allows the respondent to choose a panelist. If you want to try and establish yourself as some kind of “expert” in this subject, it can’t hurt to have every Respondent choosing you as a panelist.
So, I guess I disagree with you (but I do think you make your point in an articulate and reasonable manner). A man’s name is a man’s name, and I see no valid reason why Burgar should hold that domain.
-Randazza
March 3, 2007 at 11:02 pm
I definitely agree that the Springsteen case is an anomoly - most of the sites that reported about it had a headline such as “Burgar finally wins one.” I had a paragraph in my post about how offline TM law allows for concurrent uses, whereas the WWW doesn’t, but I had to cut it for space. Aside from playing Devil’s advocate, I wanted to show the difficulty in harmonizing the generally accepted offline principle that there really isn’t a right to use one’s name versus the cybersquatting cases which analyze names differently. I may amend the post on my blog to go over the word count to fully explore what I was going after.
As for Froomkin, I don’t trust anyone who wears a bowtie yet does not sell popcorn.
March 4, 2007 at 11:13 am
As for Froomkin, I don’t trust anyone who wears a bowtie yet does not sell popcorn.
Can I please use that on a bumper sticker? What a riot!
-Prof. Randazza