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domain_names_and_trademarks_legal_issues-clarke_walton.ppt

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  • 1. Domain Name Law Essentials Clarke Douglas Walton Walton Internet Law
  • 2. Our Roadmap
    • Popular Legal Remedies (UDRP & ACPA)
    • Case Study
    • 5 Minute Trademark Law
    • Essential Tips
  • 3. Resolving Domain Disputes
    • UDRP
      • Uniform Domain Name Dispute Resolution Policy (1999)
    • Binding arbitration
    • Less formal rules
    • No hearing
    • ACPA
    • Anti-cybersquatting Consumer Protect Act (1999)
    • Federal court
    • Very formal rules about procedure and evidence
    • Live court hearings required
    Two Ways to Resolve Domain Name Disputes
  • 4. Resolving Domain Disputes Benefits and Costs
    • UDRP
    • Benefits:
      • Fast (decision in 60 days)
      • Works against international registrants
      • Fixed Costs
        • Filing fee: less than $1,500
        • Attorney fees: $3,000 to $5,000
    • Downside:
      • Only remedy is transfer of domain name
      • Can’t recover damages
      • Can’t recover costs or attorney’s fees
    • ACPA
    • Benefits:
      • Get domain name transferred
      • Recover damages (up to $100,000 per domain name)
      • Recover court costs and attorney fees
      • Get emergency relief (restraining order, injunction)
    • Downside:
      • Difficult to estimate costs
      • Slow process (3-6 months is minimum, can take years)
  • 5. Case Study
    • Brett’s instructions:
      • “ Clarke - you have unique first hand experiences with this topic as a domainer. I would like to see you use a case study to prop up your central theme.”
  • 6. Pubcon.com
    • Pubcon.com domain name registered September 22, 2003
  • 7. Trademark Strength
    • Trademark = Source identifier
    • Not All Trademarks Are Created Equally
    • 5 Levels of Trademark Strength
      • Fanciful (very strong)
      • Arbitrary (very strong)
      • Suggestive (strong)
      • Descriptive (weak)
      • Generic (no strength at all)
  • 8. Internet Examples
    • Fanciful (very strong)
      • Zillow, Expedia
    • Arbitrary (very strong)
      • Kayak, Amazon
    • Suggestive (strong)
      • Youtube, Moviebuff, Gamespot, SeatGuru
    • Descriptive (weak)
      • The Internet Movie Database, HomeLoanCenter
    • Generic (no strength at all)
      • Hotels.com, Lawyers.com
  • 9. Who Has Priority?
    • Date of first TM use in commerce determines priority (in U.S.)
    • Not date of TM filing
    • Not date of TM registration
  • 10. Pubcon.com Trademark
    • Filed March 16, 2004
    • Registered September 27, 2005
    • First Use: June 30, 2001
      • Common law rights began
  • 11. Pubcon.com: Brett vs Clarke Who wins?
    • Pubcon.com strength?
      • Probably suggestive
    • Priority?
      • Domain name registered by Clarke September 23, 2003
      • Brett’s First Use: June 30, 2001
    • Bad Faith?
      • Depends
  • 12. Content on Domain Matters
    • Suppose you register Venetian.com
      • “ Venetian” for casino services is arbitrary, so it’s strong.
      • “ Venetian” for Venice, Italy is generic (geographically descriptive)
      • Publish content about Vegas casinos?
        • You’re in trouble.
      • Publish content about Venice, Italy?
        • You’re probably fine.
  • 13. Domain Name Law Essentials
      • UDRP vs ACPA
      • Not all TMs created equally
      • Priority is key (date of first use in USA)
      • Content affects rights
        • Be careful about content on your parked pages
  • 14. THANKS! QUESTIONS?
    • Clarke Douglas Walton
    • [email_address]
    • Google: “Website Lawyer”