DDoS Attacks Target Domain Advertising Services

From Netcraft: : "Domain pay-per-click advertising services have come under siege from digital attackers, with distributed denial of service (DDoS) attacks disrupting advertising on hundreds of thousands of parked domains. The attacks in the past week have targeted Sedo and ParkingSite, two of the largest domain monetization services. Both services say they have issued credits to customers to compensate them for service interruptions."

La jurisprudence en matière de noms de domaine : quelques statistiques

Une initiative suffisamment rare pour être saluée : Legalis a publié une étude statistique sur les sanctions pécuniaires prononcées par la justice dans les décisions portant sur internet.
L'étude porte sur 568 décisions, un tiers d'entre elles étant relatives aux noms de domaine (Frédéric Glaize avait pour sa part dénombré 275 décisions relatives aux signes distinctifs sur internet, dans une étude antérieure publiée sur Juriscom.net).
Il faut en général 39 jours pour obtenir une décision en référé relative à un nom de domaine (33 jours à Paris ou à Nanterre, contre près de deux mois en province).
L'étude indique aussi la moyenne des sommes obtenues au titre des dommages-intérêts dans ce type d'affaire, mais il est difficile de voir ce qu'elles reflètent, du fait du nombre et de la diversité des affaires, mais aussi des signes en jeu (nombreuses marques notoires au coeur des conflits).

Message à mes étudiants

Euh... vous auriez pas oublié de renouveler votre nom bde-edhec-nice.com ? ;-)

MNG complaint denied

The holder of the well-known international trademark MNG used in the fashion business, loses mng.com to a Respondent whose business is to provide search engines pertinent to generic 3-letter domain names, and who has a legitimate common-law service mark rights for mng.com.
On bad faith, Panel wrote that "it may be assumed that the letter combination “mng” may be used by some as an abbreviation, and that the degree of distinctiveness is small", and that "Respondent registered the domain name to redirect Internet traffic to its search engine, but without the intention to freeride on the goodwill created by Complainant in it trademarks".

WIPO Decision D2005-0573

Shameless self promotion

I will present a study on Internet-related international trademark disputes on September 1, at the Institute of Intellectual Property in Tokyo.
I am grateful to the Institute of Intellectual Property for sponsoring this study. The objectives of the Institute are to conduct study and research concerning various domestic and overseas issues and to collect and supply information for the purpose of promoting appropriate protection and international harmonization of the intellectual property and thereby contributing to the development of the industry and economy of Japan.

Des nouvelles des blogs juridiques (suite)

Le blog de Paxatagore s'est enrichi d'un répertoire de blogs juridiques français
La petite communauté juridique francophone grandit. Je note avec intérêt ;-) que Paxa l'a appelée bloigosphère... Espérons que ce terme aura plus d'avenir que celui de jurnal que j'avais suggéré, et qui a le succès qu'il méritait, c'est-à-dire nul ! :~)

Interesting premiere mentioned on UDRPlaw: "5 subsidiaries of GlaxoSmithKline PLC joined together in one UDRP case".

Domain names boom in China

About 720,000 websites under the domain name .cn have been registered in China by the end of July 2005, according to latest statistics released by the China Internet Network Information Center (CNNIC) (Xinhua). It would be interesting to know the percentage of domain names in Chinese characters, and how many names have been registered twice (both in Roman characters and Chinese characters).

Final step in the Falwell case?

In Lamparello v. Falwell, the United States Court of Appeals for the Fourth Circuit held that the use of the domain name fallwell.com for a web site devoted to denouncing the views of Rev. Jerry Falwell about homosexuality neither infringes Falwell's trademark in his name nor constitutes cybersquatting.
In this important case, the court ruled that, where the web site is clear about being adverse to the interests of the trademark holder, the fact that the domain name for the web site resembles the trademark is not a reason to find infringement, because the domain name must be considered in the context of the web site.

Objection to the flag

Blogger, the hosts of millions of blogs inclunding this one, just launched a new feature called "Flag as objectionable". You don't like the blog you are reading? Click on the flag!

Censorship? No, Blogger says: "The Flag button is not censorship and it cannot be manipulated by angry mobs". They explain that they want to prevent spam blogs or illegal contents, which they will delete. And they will unlist blogs with questionable content.
The usual questions come to mind: What is an offensive content? Illegal blog... under which law? Etc.

I understand Blogger wants to do something against "interferences". What puzzles me is that Blogger seem confident in their users: "So we're relying on you, the users, to be our eyes on the web ..." (this sounds scary to me).
Can the blogging community as a whole help identify content they deem objectionable? Is it possible to try to build "global standards" of decency, for example? And won't spam bloggers try to disrupt the system, by flagging every blog they can?

Objection au flag

Mon hébergeur, Blogger, a mis en place une nouvelle fonctionalité surprenante : il est désormais possible, lorsque l'on visite un blog hébergé chez lui, de signaler que l'on ne trouve pas le contenu à son goût... Il suffit de cliquer sur un bouton pour activer cette fonction joliment baptisée "Flag as objectionable".
Sur cette page d'explications, il est écrit "The Flag button is not censorship and it cannot be manipulated by angry mobs". Mouais... mais alors à quoi ça sert ? Selon Blogger et toujours sur la même page, cela permettrait de repérer plus facilement des spam blogs par exemple. Je cite : "So we're relying on you, the users, to be our eyes on the web". Brrrr...

Cela permettrait aussi de détecter des blogs à l'activité illégale...
Illégale... au regard de quel ordre juridique ? De lutter contre les contenus offensants. Offensants... pour qui ?

A ce jour, Blogger est la première plateforme d'hébergement de blogs, et je comprends qu'elle cherche à éviter la prolifération de blogs parasites du type spam blogs. Mais une telle mesure paraît excessive. Il faudrait un "Flag button" pour objecter au "Flag button" !

Shall we call this "double-squatting"?

This WIPO Domain Name Decision (D2005-0652) orders that the domain name amd-amd.com be transferred to Complainant. I don't remember seeing such abusive registrations, where a trademark is used twice. I hope cybersquatters won't follow this example.

Cease and desist letter via FedEx

This is the work of Jose Avila, who uses empty FedEx boxes to build furniture (more pictures here).
Does the domain name fedexfurniture.com infringes FedEx's rights on its trademark? Not in itself, according to FedEx, but the use "of an identical mark and trade dress in connection with fedexfurniture.com was and is likely to create confusion as to the source, sponsorship and affiliation of Mr. Avila's goods or services." They also argued that there is a violation of the copyright FedEx owns on the packaging (to discover their conclusion, click here).

[spotted on Phosita]

Nouvelles du TLD viet-namien

Le ministère des Postes et Télécommunications vient de promulguer une décision sur la gestion et l'utilisation d'internet, selon laquelle organisations et individus créateurs de pages web sont encouragés à utiliser largement les noms de domaine se terminant par .vn.
Plus d'informations dans Le Courrier du Viet-Nam.
La page des textes de loi applicables au .vn.

After Geico v. Google, Google speaks

Google reacts on its blog to the Geico v. Itself case, and clarifies the legal situation of its keyword policies. To the company, the most important part of the ruling is: "the use of [a] trademark as a keyword, without more, [does not] cause a likelihood of confusion". It then recaps its policy, "that prohibits advertisers from using someone else's trademark in their ad text when the trademark owner objects".
Google also reminds to the readers that the company won similar cases in several other jurisdictions, such as Germany and Austria... but completely forgets to mention France, where Google lost all its keyword cases (some of them are being appealed).
Last word to Google: "... don't be surprised if our policy evolves over time. We believe it is possible for an advertiser to create an ad that uses a trademark in a legal and non-confusing way - after all that is what comparative advertising is all about."

Via Google Blogoscoped

New .jp decision

Walmart wins walmart.jp (JP2005-0001裁定)

IDN in Chile

Effective September 21, Chilean domain names can be registered with ñ and accents.

[La Nación]

[UPDATE, September 8] And similar news from Finland: Since September 1st, it is possible to register names with å, ä and ö.

Quarterly Domain Name Industry Brief by VeriSign

"Total domain name registrations reached an all-time high of 82.9 million, representing an eight percent growth since the first quarter of 2005 and a 28 percent increase since the second quarter of 2004."

[Press Release]

First .travel domain active

Jottings.com writes. The name is travel.travel.

Quotation

"As you know, the Board is scheduled to consider approval of a contract for a new top level domain intended to be used for adult content. I am omitting the specific TLD here because experience shows that some email systems filter out anything containing the three letters associated with the TLD."

Correspondence from GAC Chairman to ICANN Board regarding .xxx TLD, Aug. 12, 2005.

Bid your name

This is an interesting initiative: "A group of American authors has decided to auction names of characters in their forthcoming novels" (I would like to see the contract!). Is it open to those who have registered their name as a trademark?

California Political Cyberfraud Abatement Act

California Elections Code, Section 18320-18323
[Enacted in 2003]

18320. (a) This act shall be known and may be cited as the "California Political Cyberfraud Abatement Act."
(b) It is unlawful for a person, with intent to mislead, deceive, or defraud, to commit an act of political cyberfraud.
(c) As used in this section:
(1) "Political cyberfraud" means a knowing and willful act concerning a political Web site that is committed with the intent to deny a person access to a political Web site, deny a person the opportunity to register a domain name for a political Web site, or cause a person reasonably to believe that a political Web site has been posted by a person other than the person who posted the Web site, and would cause a reasonable person, after reading the Web site, to believe the site actually represents the views of the proponent or opponent of a ballot measure. Political cyberfraud includes, but is not limited to, any of the following acts:
(A) Intentionally diverting or redirecting access to a political Web site to another person's Web site by the use of a similar domain name, meta-tags, or other electronic measures.
(B) Intentionally preventing or denying exit from a political Web site by the use of frames, hyperlinks, mousetrapping, popup screens, or other electronic measures.
(C) Registering a domain name that is similar to another domain name for a political Web site.
(D) Intentionally preventing the use of a domain name for a political Web site by registering and holding the domain name or by reselling it to another with the intent of preventing its use, or both.
(2) "Domain name" means any alphanumeric designation that is registered with or assigned by any domain name registrar, domain name registry, or other domain registration authority as part of an electronic address on the Internet.
(3) "Political Web site" means a Web site that urges or appears to urge the support or opposition of a ballot measure.

18321. This article does not apply to a domain name registrar, registry, or registration authority.

18322. In addition to any other remedies available under law, a court may order the transfer of a domain name as part of the relief awarded for a violation of this article.

18323. Jurisdiction for actions brought pursuant to this article shall be in accordance with Section 410.10 of the Code of Civil Procedure.

Power of registries in case of cybersquatting

"Stung by a spate of complaints of cyber-squatting in India's ambitious .in domain name registration process, the designated registry— National Internet Exchange of India (NIXI)— has frozen the use or transfer of certain disputed domains including citi.in, icicibank.in and tatainfotech.in."

[The Hindu Business Line: Use, transfer of disputed domain names in .IN space frozen]

New categories of domain name disputes

We entered a new age in domain name disputes. This is what Jacqueline Lipton writes in her paper Beyond Cybersquatting: Taking Domain Name Disputes Past Trademark Policy published on SSRN and in the Wake Forest Law Review, Vol. 40, No. 4, 2005.
I agree with Prof. Lipton, as I think we now need more "mature" rules to deal with domain name disputes. The UDRP rules were designed to fight against cybersquatting, at a period when it was urgent to have an efficient tool against abusive registrations. We still need to fight against cybersquatters, but we also need new standards to deal with, for example, disputes between legitimate owners.

The use of a company name for a news website can be legal

Here is an interesting decision: For years, Alfred Donovan has published news and reports on the firm Shell.
He has a website, which domain names are royaldutchshellgroup.com, royaldutchshellplc.com and tellshell.org.
In the case brought by Shell Petroleum, the Panel, as it put it, had
to "balance the Respondent’s “fair use” right to express opinions and provide information about the Complainant against the possible confusion of Internet users who reach the Respondent’s website (via any of his domain names) thinking they are accessing a site operated by or on behalf of the Complainant, an impression then dispelled by the disclaimer visible at the top of the first page of the site, which includes a link to the Complainant’s site."
Concluding a thorough review of the facts, the Panel unanimously finds: "The use of a domain name to criticize a company is prima facie fair use. The Respondent is entitled to use the Internet to use his free speech rights and express his opinion in this way, subject to other laws of course (copyright, libel, etc.). However, by reflecting the exact trade names of the Complainant and using the exact name of a facility specifically designed to send messages to or post messages about the Complainant, the Complainant argues that Respondent’s intent is to tarnish the mark. The distinction between constructive criticism and tarnishment can be a difficult one to draw. In this case, there is no evidence that Respondent’s actions are for “commercial gain” or that they are intended to tarnish the Complainant’s mark as required by paragraph 4(c)(iii) of the Policy. The Respondent does own some shares of stock, but the impact of his activities on the value of such shares is presumed by the Panel to be remote. The Panel thus finds that the Respondent has a legitimate interest in the domain names."

New dispute over a multilingual domain name

The name is 日立.com (xn--wgv287b.com), and corresponds with Hitachi, which is the transliteration of the phonetic sound of the Chinese Simplified characters for “日立”. Hitachi being the name of the complainant, the name was transferred.

[WIPO Case No. D2005-0528, July 21, 2005].

Panel uses the WIPO Joint Recommendation on the use of distinctive signs on the Internet

Are there precedents? This decision (WIPO Decision D2005-0336) is the first I read which refers to the WIPO Joint Recommendation on the Use of Marks on the Internet.
Because the Respondent in this case was prepared to use a suitable disclaimer on its website which would exclude confusion of users, who are expecting to arrive at a website of the Complainant, with the business and the website of the Complainant, the Panel found that the Respondent did not registered and is not using the domain name accoronline.com in bad faith (this Respondent's business name is Accor International, business based in India).

Study on ".ca" regulation

Marc Watkins, Government Regulation of Dot-ca Domain Name Space, University of Ottawa Law and Technology Journal, Vol. 2 Issue 1, Pages 145-172.
This article takes a closer look at the Canadian .ca Top Level Domain Name and the Canadian Government’s current and possibly future regulatory regime. Emphasis is put on answering four key questions: What can be regulated? How can it be regulated? What is the current situation in Canada? And should there be regulation in the first place?

London: High Court rejects itunes.co.uk dispute review

The High Court in London has rejected an application for a judicial review into the ownership of the itunes.co.uk domain. Commentators say it should be the end of this long dispute.

[The Register]

A short story of the .ws

here.

MSN Keyword coming in October

MSN has released the name and delivery date for its paid keyword bid platform, designed to be the first component of MSN's adCenter: MSN Keywords. More on MSN paid search product on ClickZ News.

No extraterritorial use of the Lanham Act

Cecil McBee is an American musician. Delica is a Japanese company, which uses the trademark Cecil McBee in Japan and on the internet (cecilmcbee.net). The latter holds the trademark in both Japanese and Roman characters, and uses it for clothes.
McBee (the American) petitioned the Japanese Patent Office to invalidate Delica's English-language trademark. He failed in 2002.
After 2002, Delica formulated a policy not to sell or ship Cecil McBee products to the United States.
Three Japanese-speaking persons commissionned by Cecil McBee tried to buy Cecil McBee products from the Japanese website and failed, but they could order some from a few stores. The total value of goods sold and shipped to them in the US was 2,500 $. No other Cecil McBee products were sold in the US nor resold on eBay.
Cecil McBee said Delica harmed his reputation in the USA, and that American courts had jurisdiction over the case. After thorougly reviewing the case, the US Court of Appeals for the 1st circuit concluded it had jurisdiction, but that the plaintiff's claim was without merit because the only sales Delica has made into the United States were induced by him for purposes of this litigation.
The Court also concluded it lacked jurisdiction over McBee's other claim seeking an injunction in the US barring access to Delica's website, which is written in Japanese*. The website was created and hosted in Japan, was written almost entirely in Japanese, using Japanese characters although it contained some English words (for effect). Other websites associated with Delica's Cecil McBee product line, that also came up when searches for "cecil mcbee" were performed on search engines, were written primarily in Japanese.

* my emphasis

United States Court of Appeals For the First Circuit, Cecil McBee v.
Delica Co., Ltd., No. 04-2733, August 2, 2005.

To what extent is a domain name similar to a trademark?

That's interesting: In order to assess the similarity between a domain name and a trademark, a Panel had a look at what they were used for: "Given the high degree of similarity between the services offered, the Panel finds that the domain name is confusingly similar to the Complainant's mark" (WIPO Decision D2005-0406, hun.com). This is a broad interpretation of UDRP article 4.a.(i), which implies to compare the nature of the signs rather than their function.

.eu ADR website launched

The web site of the Arbitration Center for .eu Disputes has been launched (preliminary temporary website for the moment).
The Czech Arbitration Court, in charge of drafting the rules and procedures for .eu ADR, just posted the Disputes Resolution Rules and the Supplemental Rules. All interested parties are welcome to submit their comments
{full disclosure: I already provided comments on an earlier draft of the rules}

Appeal against a CIETAC decision

Following a complaint by a Dutch company, the China International Economic and Trade Arbitration Commission ruled that F1.com.cn and F1.cn must be transferred. The domain names owner has appealed to the local Chinese courts.

[ChinaTechNews.com]

Cyb-fr-squatting

Alors que l'A.F.N.I.C a récemment mis fin aux agissements d'une société qui avait acheté des centaines de noms de domaine en .fr en violation des règles d'enregistrement, elle risque de nouveau d'avoir à réagir dans une affaire semblable révélée par MailClub : une société britannique en collusion avec une société sise à Belize, a réservé de nombreux noms de domaine correspondant à des marques, en ajoutant une lettre (tiscalli.fr, goolgle.fr, degrifftour.fr, adiddas.fr, addecco.fr, playmobile.fr), ou en en supprimant une (waldisney.fr, weightwachers.fr, pegeot.fr, rynair.fr, hotmai.fr, footloker.fr, waadoo.fr, laredute.fr, caramai.fr, skyrok.fr, disneychanel.fr), tout en s'appropriant aussi au passage des noms exactement équivalents à des marques (virginmusic.fr), rapporte Jean-François Poussard.

From "mazda.com.mx" to Mazda MX

This case is worth mentioning: the Japanese car producer Mazda brought a case before the WIPO arbitration center to obtain the transfer of mazda.com.mx.
This case was not too hard to win: Exact reproduction of the trademark, no answer from the defendant... The domain name was transferred to Mazda.
Since this company also sells a car which name is Mazda MX-5 (and used to sell MX-3), it could probably also have argued that the use of .mx in the domain name was another source of confusion.

[WIPO Domain Name Decision DMX2005-0003 (case in Spanish)]