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Balancing Rights: Mark Owners, Emergent Businesses, and Investors

Is there any act more primary than naming? It comes before all else and makes possible what follows. For the most part names are drawn from cultural assets: collections of words, geographic locations, family names, etc. They can be valuable, which is why they are guarded, protected, and hoarded. The balancing of rights among those […]

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Commodifying Words and Letters in the .Com Space

Words (and by extension their constituent letters) are as free to utter and use as is the air sustaining life. No one owns them. There is no toll fee to be paid to dictionary makers who curate them. There are, however, two carve-outs from this public domain, namely words and letters businesses use as designations […]

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In Whose Language? Cybersquatting by Foreigners

There are no gatekeepers to prevent registrants from acquiring domain names incorporating marks that potentially violate third-party rights. Anyone, anywhere can acquire domain names composed of words and letters in languages not its own through a registrar whose registration agreement is in the language of the registrant.  For example a Chinese registrant of a domain […]

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Passive Holding of Domain Names and the Argument for Bad Faith or Forfeiture

There is a misconception among some trademark owners and their counsel that passive holding of domain names alone, Sandy Frank Film Syndication, Inc. v. Ralph Zita, FA1612001706714 (Forum February 14, 2017) (<youaskedforit.com>), or combined with lack of rights or legitimate interests, Harow v. Future Media Architects, Inc., D2017- 0134 (WIPO March 6, 2017) (<harow.com>), supports […]

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Trademarks and Domain Names Composed of Common Terms

The lexical material from which trademarks are formed is drawn from the same social and cultural resources available to everyone else, which includes domain name registrants. Since trademarks are essentially a form of communication it is unsurprising that a good number of them are composed of common terms (dictionary words , descriptive phrases, and shared […]

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Sanctionable Conduct for Abusing the UDRP Process

To claim a superior right to a string of characters mark owners must (first) have priority (unregistered or registered) in using the mark in commerce; and secondly, have a mark strong enough to rebut any counter argument of registrant’s right or legitimate interest in the string. A steady (albeit small) number of owners continue to […]

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Diversity of View or Unacceptable Inconsistency in the Application of UDRP Law

The general run of UDRP decisions are unremarkable. At their least they are primarily instructive in establishing the metes and bounds of lawful registration of domain names.  A few decisions stand out for their acuity of reasoning and a few others for their lack of it. The latest candidate of the latter class is NSK […]

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Timing is All: Registrant Cybersquatting or Mark Owner Overreaching?

Admittedly, timing is not altogether “all” since there’s a palette of factors that go into deciding unlawful registrations of domain names, and a decision as to whether a registrant is cybersquatting or a mark owner overreaching is likely to include a number of them, but timing is nevertheless fundamental in determining the outcome. Was the […]

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Identical or Confusingly Similar to Trademarks but Noninfringing Domain Names

Domain names may be confusingly similar to trademarks or even identical or but not infringing. This is particularly true of trademarks acquired later than the allegedly infringing domain names ArcBest Corporation v. Domains By Proxy, LLC, Registration Private / Vernon Troupe, D2016-2381 (WIPO January 13, 2017) (<arcbest.com>, in which “ark” is a contraction of “Arkansas”), […]

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Counterfeit Marks and Counterfeit Goods: Pretense in Cyberspace

The term “counterfeit” is defined under U.S. trademark law as “a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. § 1127 (Lanham Act, Sec. 45). Used as a noun, domain names ultimately found to have been registered in bad faith make their registrants cybersquatters by definition. But more […]

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