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Archive | January, 2011

Contracts That Resemble But Are Not Publishing Agreements

There is a difference between contracts offered by traditional publishers and contracts by printers that resemble but are not publishing agreements. Traditional publishers produce, distribute and market books at their own expense; they assume the risk that these costs will have a positive return on investment. Printers print on demand even though they may advertise […]

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Disrupting the Business of a Competitor

Paragraph 4(b)(iii) of the Policy reads: “[Y]ou have registered the domain name primarily for the purpose of disrupting the business of a competitor.” Strictly speaking, paragraph 4(b)(iii) applies only if the respondent’s conduct is directed to the “business of a competitor.” The term “disruption” is unique to this provision. It denotes an intentional act by […]

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Website as Evidence of Abusive Registration, But the Infringement is the Domain Name

In determining whether a respondent has violated the UDRP the examination focuses on the domain name and the trademark not the website and the trademark, although the website (whether or not it exists and its content) is supportive evidence of the alleged infringement. The Panel draws this distinction in Xcentric Ventures, LLC d/b/a www.RipoffReport.com v. […]

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Choosing a Domain Name With a “.co” Extension that Has No Independent Presence on the Internet

The extension “.co” (country code for Columbia) is perfectly respectable although confusing with “.com” where the second level domain is identical to a trademark, there is no explanation for the registration and the respondent has no relationship with Columbia. It suggests a deliberate attempt to use “a particular ccTLD space” for illegitimate purposes, which in […]

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Defending Domain Name Choice

Of the three defenses [4(c)(i-iii) of the Policy], the first and third require proof of a legitimate use. The first defense expressly requires proof that the legitimate use or demonstrable preparations for it preceded notice of the dispute. The third defense is not explicit that the “noncommercial or fair use” use be before notice of […]

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UDRP’s Jurisdiction Does Not Extend to Cases Where a Registered Domain Name is Subject to a Legitimate Dispute

The UDRP offers a forum with limited jurisdiction to resolve a particular type of dispute in which a domain name registrant has allegedly misappropriated a trademark for commercial gain at the holder’s expense. The Policy does not presume to adjudicate claims for trademark infringement or business disputes that concern more than the domain name. The […]

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Second Complaint For Same Domain Name, but Against a Transferee

First generation registrants are favored under the UDRP even if use changes to bad faith while transferees are answerable for their choices from the date of the new registration. It is not disallowed to commence a second proceeding for the same domain name if against a different respondent. At its first performance in 2008, the […]

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Exploiting Inadvertent and Artless Misspelling of Trademarks

Potential, inadvertent and artless misspelling of trademarks by Internet users while typing in the domain name was quickly exploited by entrepreneurial registrants as a source of income. The first appearance of a typographical error – omission of a dash in the trademark C-COM – was not recognized as such by the Complainant who alleged that […]

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Multiple Related Complainants Each With Individually Vested Trademark Rights

ICANN’s Rules for the Uniform Domain Name Dispute Resolution Policy provide that “[a]ny person or entity may initiate a complaint” against a registrant who it accuses of registering a domain name identical or confusingly similar to a trademark in which it claims a right, Paragraph 3(a). WIPO’s Supplemental Rules state that “[a]ny term defined in […]

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What Is Meant By “Mandatory” in the Phrase “Submit to a Mandatory Proceeding”?

Paragraph 4 of the Policy describes the arbitral procedure as a “mandatory administrative proceeding.” This should not be misunderstood to mean that the respondent is compelled to appear. Indeed, statistically respondents default 85% of the time. The term “mandatory” is used in the sense that respondents are “obliged by virtue of the [registration] agreement to […]

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Memoir and Truth

Publishers are precise about the genre of the works they agree to publish. What is being licensed (what the author/licensor is granting) is spelled out in an opening provision of the contract and is a material term. How does this apply to memoir? We think of a memoir as an exposition of the author’s life […]

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Competition for Productive and Corresponding Domain Names

Competition for domain names productive for non-trademark business and those corresponding to trademarks is intense. Dictionary words alone or combined to form likely and unlikely phrases are all grist. The right term for domainers is one that both attracts Internet users and avoids infringing on third party rights. Holders of dictionary word and descriptive phrase […]

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Standards for Refiling Complaint

Refiling a complaint against the same respondent for the same domain name is not permitted as “of right.” It was early decided that “[o]nce a party has been given a defended hearing … and a decision rendered, then a case cannot be re-litigated,” Grove Broadcasting Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO November 10, […]

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