What is the Anti-Cybersquatting Consumer Protection Act of and does it prohibit The act provides a cause of action to a trademark holder when someone. What is cybersquatting? Cybersquatting is the act of purchasing a domain name that uses the names of existing businesses, which are usually trademarked. The Anticybersquatting Consumer Protection Act (“ACPA”)’ provides a cause of action for trademark owners against cybersquatters2, who regis- ter domain.
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In other words, there are no laws in any jurisdiction, national or otherwise, that explicitly prohibit the practice. Evidence of such registrations can be obtained by performing a reverse “who is” search. Finally, one “traffics in” an offending domain when he transfers or receives the domain in exchange for consideration, such as via a sale, purchase, loan, pledge or license.
Actual damages include the profits the domain name registrant made from his use of the mark, as well as losses sustained by the mark holder as a result of the domain name registrant’s actions, such as lost sales or harm to the mark’s reputation. Login Register Follow on Twitter Search. Chasser, “Early cases include Intermatic, Inc. The Committee also heard testimony that Warner Bros.
As shown above, the ACPA is a useful weapon against those who improperly register a domain containing your mark. The trademark counterfeiting provision of the Lanham Act also allows parties to elect to receive statutory damages instead of actual damages or profits, but similarly fails to provide guidelines to courts for determining an appropriate award. Offers to Sell Domain Name Most of these factors are self-explanatory and require little comment. Despite the problems it presents to trademark owners and consumers, cybersquatting, is not illegal per se.
Only “the domain name registrant or that registrant’s authorized licensee” can be held liable for such “use. Courts thus routinely look to offers by the defendant to sell the domain name as evidence of his bad faith.
In one case involving domain names, the plaintiff observed, and the court agreed, that “some of the domain names at issue have registrants whose identities and addresses are unknown and against who in personam proceedings might be fruitless.
What is the Anti-Cybersquatting Consumer Protection Act of 1999 and does it prohibit gripe sites?
We also heard the account of a cybersquatter purporting to sell Dell Computer products under the name ”dellspares. In the cases where courts have awarded statutory damages in cybersquatting cases, they typically do not discuss in any detail their rationale for awarding statutory damages. In its report on the ACPA, the Senate Judiciary Committee distilled the crucial elements of bad faith to mean an ” intent to trade on the goodwill of another’s mark.
The court cannot award monetary relief.
One district court, however, recently held that an in rem plaintiff in an ACPA case may also recover the monetary remedies provided under Section a for other causes of action under the Lanham Act. Whether it’s people extorting companies by registering company names, misdirecting Internet users to inappropriate sites, or otherwise attempting to damage a trademark that a business has spent decades building into a recognizable brand, anyone engaging in cyber-squatting activity should be held accountable for their actions.
Finally, and most importantly, cybersquatters target distinctive marks to defraud consumers, including to engage in counterfeiting activities. The actual amount awarded is fixed by the court in its discretion. But what if the domain registrant has provided false contact information, preventing you from knowing who to sue?
Although there have been many decisions under the ACPA in the more than eight years since its enactment, there have been a relatively small number of cases in which courts have discussed issues relating directly to statutory damages. First Interstate Bank of Denver, N. Others attempt to divert unsuspecting consumers to their sites in order to engage in unfair competition.
Second, several courts have expressly recognized the importance of the deterrent effect of statutory damages, which should help in situations where cybersquatters own or use domain names for only a short time, even cybersquatters who monetize domain names with click-through advertising for just a few days. In determining whether the domain name registrant has a bad faith intent to profit, a court may consider many factors, including nine that are outlined in the statute:.
For example, several years ago a small Canadian company with a single shareholder and a couple of dozen domain name s demanded that Umbro International, Inc. Cybersquatters register famous trademarks in bulk, but in most cases, do not post an active Web site.
Specifically, the Fifth Circuit held that the duration of the offending use of the domain name did not have to be considered when calculating statutory damages. As a result, consumers have come to rely heavily on familiar brand names when engaging in online commerce.
The ACPA does not provide courts with any guidelines or criteria for determining when statutory damages are to be awarded, or how much should be awarded, other than the award should be “as the court considers just.
Domainers rely on type-in trafficwhich is when Internet surfers type in the domain name protectioon than using a search engine.
Retrieved Oct 1, Misspelling the Owner’s Mark Courts regularly find “typo” domains — domain names that misspell the owner’s mark — to be confusingly similar and thus to trigger liability under the ACPA.
For example, the Committee heard testimony regarding a cybersquatter who registered the domain name s ”attphonecard. For example, when Mobil and Exxon announced their proposed merger in Naticybersquatting,a speculator registered every variation of the possible resulting domain namei.
This is no doubt due in part to the lack of guidance in the ACPA and its legislative history. For example, the Committee heard testimony regarding an Australian company operating on the Internet under the name ”The Best Domains,” which was offering such domain name s as ”porsche.
The final element you need to establish is the most difficult to demonstrate, namely the motivation for defendant’s conduct. As observed by the U.
In examining the cases that have awarded statutory damages, however, the courts have based their awards on a wide range of factors.
Judicial review of a WIPO decision is de novo. The ACPA’s congressional record consistently signals the drafters’ anticybersauatting to target a narrow class of cyber-squatters consisting of those who have the bad faith intent to consumeg, and not to tread on the rights of those with any other motives.
Purdy, F3d 8th Cir.
Statutory damages under the Anticybersquatting Consumer Protection Act – Lexology
Reverse domain hijacking Cybersquatting Domain name drop list Domain name speculation Domain sniping Domain parking Domain tasting Domain name warehousing Doppelganger domain Type-in traffic Typosquatting Domain name front running.
Others register well-known marks as domain name s and warehouse those marks with the hope of selling them to the highest bidder, whether it be the trademark owner or someone else. The ACPA has also been successfully consumee to prevent the tarnishment of a mark by its use in the domain of a Web site containing pornographic or other materials with which the mark holder does not wish his mark associated.
First, courts have not been shy in awarding large amounts of statutory damages. Views Read Edit View history.