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The Confusion of Attracting Internet Traffic Through Deception

The twin bete noires of the market are confusion and deception, which (as one legal mechanism) the UDRP is designed to combat. Domain names are invitations; they either identify the person behind the door or announce the subject or business therein promoted. In the case of trademarks, their reputations precede them. Business thrives on volume. The Respondent in yesterday’s Note [Cisco Technology, Inc. v. Nicholas Strecha, E-Careers LTD, D2010-0391 (WIPO May 7, 2010)] offered IT Training to help students understand and use Cisco technologies, but it registered a domain name that except for the addition of “uk” was identical to the Complainant’s trademark. Geographic additions to the dominant word of the trademark do not create a distinctive mark. Bad faith in that case was predicated on the Respondent using a trademark as its barker to compete with the Complainant for students in the primary market.

In Rockwell Automation, Inc. v. Jose Hernandez, FA1004001316859 (Nat. Arb. Forum May 20, 2010) the Respondent added “products” to the Complainant’s trademark, ALLEN BRADLEY to aggregate offers to sell Complainant’s products. Respondent is a member of the eBay Partner Network. The Complainant, formerly known as the “Allen-Bradley Corporation,” manufactures factory automation equipment under its trademark. “At his website [<allenbradleyproducts.com>] the Respondent displays auctions for products that are not genuine Allen-Bradley products.” In “some cases the text regarding the specific auction on eBay states that the product being sold is manufactured or produced by another vendor, but this information only becomes available to the Internet user after clicking through to <ebay.com> from Respondent’s website.”

Cybersquatters are “people who register domain names knowing them to be the trade marks of others and with the intention of causing damage or disruption to the trade mark owners and/or unfairly exploiting the trade marks to their own advantage,” Tomatis Developpement SA v. Jan Gerritsen, D2006-0708 (WIPO August 1, 2006). In Cisco Technology the Respondent’s business is genuine, but its appropriation of the Complainant’s trademark on its door to promote itself on the Internet is intended to deceive the public in a typical bait and switch ploy. It offers courses designed and given by itself not the trademark holder. In Rockwell Automation the Respondent has no business. Its website is designed for the sole purpose of attracting and redirecting Internet traffic to e-bay to collect pay-per-click partner fees.

Every respondent challenged on its registration wants to associate its offering with a brand without leaving the impression that the domain name will lead to the official website of the trademark owner or is sponsored by it. Disclaiming association with the complainant while using the complainant’s trademark to attract traffic is a double dose of duplicity. First, the respondent pretends to be who is isn’t; then it pretends that its use of the complainant’s trademark was not intended to convey the impression of an association with the complainant.

Gerald M. Levine <udrpcommentaries.com>
E-Mail gmlevine@researchtheworld.com

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