-------- Original Message -------- Subject: Interesting new UDRP decision Date: Fri, 22 Oct 2004 15:35:21 -0400 From: Paul Levy <plevy@private> To: <declan@private> The recent decision by the National Arbitration Forum panel rejecting a claim by American University President Benjamin Ladner against the students who maintain the website www.benladner.com is worth noting. The decision is reported at http://www.arb-forum.com/domains/decisions/305190.htm The decision relies heavily on recent decisions by three federal appellate courts allowing the use of trademarks in domain names for gripe sites, or "that criticism sites may constitute noncommercial use of the domain name in issue even where the domain name itself does not communicate criticism," citing See TMI Inc. v. Maxwell, 368 F.3d 433 (5th Cir. 2004); Lucas Nursery & Landscaping v. Grosse, 359 F.2d 806 (6th Cir. 2004); and Nissan Motor Co. v. Nissan Computer Co., 378 F.3d 1002 (9th Cir. 2004). In a footnote, the panel state that a Fourth Circuit decision, PETA v. Doughney, 263 F.3d 359 (4th Cir. 2001), might seem to be to the contrary but might also be distinguished because the defendant there was deliberately trying to extort a payment; a majority agreed, however, that PETA was simply inconsistent with "the current trend in U.S. law on this point." The decision agrees that the website represents an exercise of free speech rights, and is non-commercial, even though it sells banner advertising and solicit donations, because the respondent asserted that he does not realize any revenues personally, but rather uses any revenue to improve the website. It will be interesting to see if this point gains judicial acceptance. The decision also rejects Ladner's claim to have trademark rights in his name, because no products are associated with it. This point is valid so far as the UDRP goes, but would not prevail if a cybersquatting claim were filed under the ACPA. However, there are so many other problems with the case that it is hard to see Ladner taking it to court. Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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