Cyber name-calling

A Legal View: The primary issue is whether the a domain name is confusingly similar to the original

The Uniform Domain Name Dispute Resolution Policy

In August 1999, the Internet Corporation for Assigned Names and Numbers (ICANN) adopted a new Uniform Domain Name Dispute Resolution Policy for settling competing claims to Internet domain names. Under the policy, an aggrieved party can initiate arbitration proceedings by filing a complaint alleging that:

* The disputed domain name is identical or confusingly similar to a trademark or service mark to which the complainant has rights.

* The holder of the disputed domain name has no rights or legitimate interests in it.

* The domain name has been registered and is being used in bad faith.

Recently, a series of decisions has been issued involving the registration and use of domain names created by adding a disparaging word, such as "sucks," to a well-known company's trademark or servicemark to create a new name, such as www.lockheed sucks.com. In these cases, the primary issue is whether the resulting domain name is confusingly similar to the original.

For example, when Lockheed Martin Corp. brought a complaint against the owner of www.lockheedsucks.com and another domain name of the same ilk, www.lockheedmartinsucks.com, the World Intellectual Property Organization cited "both common sense and a reading of the plain language of the policy" in deciding in favor of the defendant.

Even if the party filing the complaint can show that the offending name is confusingly similar to its own trademark, it must also show that the holder of the disputed domain name has no rights or legitimate interests in it.

"In those cases where the registrant has added '-sucks' or some other word to the name of the person or company and used it as a domain name linked to a Web site that criticizes the person or company, the rights of the registrant have been uniformly upheld as a reasonable exercise of free speech rights, as well as a fair use of the person's or company's name," wrote a three-person panel of the National Arbitration Forum — an international network of former judges, senior attorneys and law professors — in a June 2001 decision.

The panel refused to allow Bloomberg LP, the giant financial media firm, to take control of www.michael bloombergsucks.com from Secaucus Group, the business that registered it.

Moreover, the final issue — whether the domain name has been registered and is being used in bad faith — is likely to be decided in much the same way as the previous test. By submitting evidence that the contested domain name linked to www.sucks500.com, a free speech Web site that posts greivances against companies, politicians and celebrities, Secaucus Group "effectively foreclosed [Bloomberg's] ability to prove bad faith," the panel concluded.

Companies faced with this situation may have other avenues through which to seek a remedy. Arbitration under ICANN's policy statement is unlikely to be the answer.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.

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