Domain-Name Wars, Rise of the Cybersquatters 183
Posted
by
ScuttleMonkey
from the clearly-we-need-more-laws-and-restrictions dept.
from the clearly-we-need-more-laws-and-restrictions dept.
CWmike writes "When FreeLegoPorn.com began publishing pornographic images created with Lego toys, Lego acted quickly. "The content available on the site consisted of animated mini-figures doing very explicit things. We were not amused," says Peter Kjaer, an attorney for Denmark-based Lego. Lego didn't go to court. Instead it filed a complaint with the World Intellectual Property Organization, which ruled in its favor. The domain registrar for FreeLegoPorn.com, GoDaddy.com, eventually shut down the site and transferred the domain name to Lego under ICANN rules. But it's not just Lego and Verizon that are suffering. Green energy is a hot topic, so cybersquatters have been targeting wind and solar energy start-ups. And malicious sites can create havoc with a brand's reputation. Cybersquatting activity rose by 18% last year, with a documented 440,584 cybersquatting sites in the fourth quarter of last year alone, according to MarkMonitor's annual Brandjacking Index report. And WIPO cited an 8% jump in dispute filings in 2008, to 2,329 complaints — a new record. Now, ICANN is preparing to open a potentially unlimited number of new top-level domains as early as the first quarter of 2010."
They should've fought for it (Score:2, Informative)
As someone pointed out, courts are inconsistent.
Unless FreeLegoPorn knew they judges they would face would rule against them due to locally-binding precedent, they should have sued to regain the name.
This is parody.
If the local judges were likely to rule against them they should have relocated their corporate headquarters to a more judicially friendly venue, picked a new similar equally-"infringing" name, and pre-emptively sued to declare that their use was not a trademark infringement. Then once they won that battle, sue for the old name back.
My guess is they decided it wasn't worth the expense.
Re:freelegoporn.com is not cybersquatting (Score:3, Informative)
Trademarks are certainly not protected by fair use. Fair use is an affirmative defense in copyright infringement cases, not trademark infringement cases. A company that registers a trademark must, by law, defend that trademark in court against all infringers it has knowledge of.
Re:freelegoporn.com is not cybersquatting (Score:5, Informative)
Wrong. Fair use is also a defense in trademark infringement cases. Fair use of a trademark includes things such as descriptive use, e.g. "Similar to Kleenex", use in advertising by resellers, and a whole host of other things.
The article Fair Use of Trademarks [publaw.com] is a good read on the subject.
Not really increasing compared to domain names (Score:4, Informative)
According to netcraft in the last year there has been about 40% increase in fully qualified domain names out there (includes subdomains not just top level so not a perfect stat but a good indication)
June 2008 172,338,726 FQDNs (http://news.netcraft.com/archives/2008/06/index.html)
June 2009 238,027,855 FQDNs (http://news.netcraft.com/archives/2009/06/17/june_2009_web_server_survey.html)
So really you could say that cyber squatting is decreasing relative to the increase in domain names........
Not really increasing compared to domain names
Re:freelegoporn.com is not cybersquatting (Score:3, Informative)
But trademark law doesn't prevent any use of the word at all - this isn't like patent or copyright law. It only affects commercial usage. After all, I can say Lego Lego Lego here all I like, without being in violation of trademark law - it's only when I sell something called "Lego" that I risk a lawsuit.
In this case, it's unclear that there website was commercial - given the "free", I'm guessing not.
Trademark does not - or should not - allow companies to shut someone down merely for using a word. Trademark is intended for a specific purpose, and not to allow companies to own words in general.
Trademark rights do not exclude parody. (Score:4, Informative)
Ah, but trademark rights do not protect against parody in the first place. You wouldn't even need to use a fair use defense, if you aren't using the trademark as a trademark on similar products then you aren't infringing the trademark rights.
Re:freelegoporn.com is not cybersquatting (Score:2, Informative)
Are you seriously suggesting that freelegoporn.com was NOT intended to be a money-making venture?
Wait - what?
(Yes, I know that companies can offer things for free in order to make money selling extra, but I fail to see why you're pulling the "seriously?" when there is no evidence to suggest that this was a money making venture. If you know otherwise, provide your reference.)
/. of archives in 3 ... 2... (Score:1, Informative)
I can just see the /. effect on all the cache & archive servers as everyone tried to hit them to see the lost content.
Trademark is not copyright (Score:3, Informative)
Are you seriously suggesting that freelegoporn.com was NOT intended to be a money-making venture?
Eh? Who cares? Was Lego planning on getting into the porn business? No? Then I could market my 'Lego' brand of porn without infringing. Just like Apple Records and Apple Computers can coexist.
Re:Trademark rights do not exclude parody. (Score:2, Informative)
It doesn't necessarily matter if it is on similar products or not. There is such a thing as "trademark dilution" and featuring the Lego products in the porn pictures certainly qualifies.