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Archive | August, 2011

Deliberative Conversations and the Making of Domain Name Jurisprudence

You may well ask, What does deliberative conversation have to do with the making of domain name jurisprudence? Mention was made of conversation in the Binary/Unitary Note last week. Ideas have to come from somewhere and once they are uttered interlocutors test and return them as received or modified. There are a number of interesting […]

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Acronyms, Passage of Time, Reputation and Coincidence

Domain names composed of two or three letters are “extremely prized,” Deutsch Welle v. Diamondware Capital Ltd, D2000-1202 (WIPO January 2, 2001) (<dw.com>). They can be attractive to many trademark holders other than complainants who claim a market identity and seek to capture the domain names for themselves. However, except for acronyms or initials well […]

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The Binary versus the Unitary Concept of Abusive Registration

A minority view has emerged, indeed is greatly insistent and inarguably articulate even if not persuasive, that questions a bedrock consensus of UDRP jurisprudence. Panelists of the earliest decided cases concluded that for the complainant to succeed it must plead and prove that the respondent registered (intent) and is using (present conduct) the domain name […]

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Domain Names are Intangible Personal Property

Domain names were initially seen as having two lives: providing “addresses for computers that [are] easy to remember … without the need to resort to the underlying IP numeric address” and identifying a business or its goods or services. To these purely functional tasks must be added a commercial value created by putting domain names […]

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Registering Fan Club Domain Names: Ambivalence to Unfavorable

Of all the WIPO Views on Selected UDRP Questions, two stand out for Panels being in disagreement. Criticism sites (paragraph 2.4) and Fan sites (paragraph 2.5). For answers to all the other questions there is consensus. The two questions are as follows: 2.4 Can a criticism site generate rights or legitimate interests in the disputed […]

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Comments and Commentary: Protected Noncommercial Fair Use

Expressing one’s thoughts in a domain name identical or confusingly similar to a trademark is protected speech even if it offends and enrages the complainant. The Policy enshrines the right to speak critically. There has, however, been a mixed reception for domain names identical to the trademark. In Aspis Liv Försäkrings AB v. Neon Network, […]

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Rights to Dictionary Words and Common Phrases as Trademarks and Domain Names

As a trademark descends on the scale of protectability its holder has less cause for complaint. If it were otherwise a trademark holder would have the ability to lock up and command a community’s cultural and linguistic heritage. Registering a domain name composed of common words and descriptive phrases is not abusive merely by being […]

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Domain Names Registered Prior to Trademark

Unless a respondent has occult powers domain names registered prior to trademark acquisition cannot have been registered in bad faith. Use alone in bad faith is insufficient for forfeiture. Paragraph 4(a)(i) of the Policy is written in the present tense. The complainant must demonstrate that it has a present “right” in a lexical string that […]

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Request to Transfer the Domain Name and Forego the Usual UDRP Analysis

Rule 17 of the Rules of the Policy provides alternative instructions for terminating a proceeding: “(a) If, before the Panel’s decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding.” Subparagraph (b) also provides alternative instructions: “If, before the Panel’s decision is made, it becomes [1] unnecessary or [2] impossible to […]

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