Your Money or Your Name

By Brett Dorny, CIO |  Business

Since trademark law, which is set by statute, is now understood not to apply to
domain names, further government action is necessary to address this new type of
property. First, due to complaints about the ways in which Internic was handling the
assignment of domain names, the government stepped in and selected a new process. A new
entity, Internet Corporation for Assigned Names and Numbers (ICANN), began assigning
names. One of the first things ICANN did was to develop a policy relating to disputes
regarding domain name assignments. Congress has also worked on developing a policy for
resolving disputes within the courts. Recent bills have been passed to amend trademark
law to address domain names. Both ICANN's draft policy and the new bills treat domain
name registration in the same way.

Domain names are still to be registered on a first-come-first-served system.
Therefore, as between two possible users of a domain name, the first to attempt to
register the name will have the rights to it. On the other hand, domain names cannot be
held for ransom. A trademark owner can dispute a domain name registration for an
identical or confusingly similar name to its mark. However, the trademark owner will
only prevail if it can show that the registrant acted in bad faith; in other words,
registered the domain name for purposes of extorting big bucks from its more
appropriate owner. Bad faith is shown by offering to sell the name for large sums or by
nonuse, or by use not related to a legitimate business or in connection with a
confusing business. If the trademark owner prevails, not only is the domain name owner
precluded from using it in a confusing manner, as under current trademark law, but the
domain name registration is canceled. This allows the trademark owner to register the
domain name as the first registration for the now canceled domain name.

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