[IP] Panel says that American Univ. students can use BenLadner.com domain [fs]
Begin forwarded message:
From: Declan McCullagh <declan@xxxxxxxx>
Date: October 23, 2004 8:00:34 AM EDT
To: politech@xxxxxxxxxxxxxxx
Subject: [Politech] Panel says that American Univ. students can use
BenLadner.com domain [fs]
-------- Original Message --------
Subject: Interesting new UDRP decision
Date: Fri, 22 Oct 2004 15:35:21 -0400
From: Paul Levy <plevy@xxxxxxxxxxx>
To: <declan@xxxxxxxx>
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
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