Merchandising; Cybersquatting. Intro to IP – Prof Merges 3.30.2010. Merchandising: “Extension by Contract”. Merchandising and basic trademark theory What consumer associations are protected by a “merchandising right”? What other benefits follow from such a right?. How does franchising work?.
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Intro to IP – Prof Merges
Doughney (I) had no intellectual property right in peta.org; (II) peta.org is not Doughney’s name or a name otherwise used to identify Doughney; (III) Doughney had no prior use of peta.org in connection with the bona fide offering of any goods or services; (IV) Doughney used the PETA Mark in a commercial manner;
(V) Doughney ‘‘clearly intended to confuse, mislead and divert internet users into accessing his web site which contained information antithetical and therefore harmful to the goodwill represented by the PETA Mark’’;
(VI) Doughney made statements on his web site and in the press recommending that PETA attempt to ‘‘settle’’ with him and ‘‘make him an offer’’; (VII) Doughney made false statements when registering the domain name; and (VIII) Doughney registered other domain names that are identical or similar to the marks or names of other famous people and organizations.
"Owe no one anything except to love one another, for he who loves another has fulfilled the law." (Romans 13:8)
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‘‘The paradigmatic harm that the ACPA was enacted to eradicate’’ is ‘‘the practice of cybersquatters registering several hundred domain names in an effort to sell them to the legitimate owners of the mark.’’ Lucas Nursery & Landscaping, Inc. v. Grosse, 359 F.3d 806, 810 (6th Cir. 2004).
[W]e need not resolve that question or determine whether Sections 32 and 43(a) apply exclusively to commercial speech because Reverend Falwell’s claims of trademark infringement and false designation fail for a more obvious reason. The hallmark of such claims is a likelihood of confusion—and there is no likelihood of confusion here.
John Zuccarini (born c. 1947) is an American businessman who served time in federal prison for violating the Truth in Domain Names Act. Zuccarini operated a domain name speculation business. He is reported as owning 5500 domains before his arrest.
John Zuccarini was charged under "truth in domains" legislation
Domain name speculation
Zuccarini registered thousands of domains that were close misspellings or "typos" of popular sites such as Cartoon Network and Homestar Runner or even acquired domains identical to well known brands such as Hot Wheels. Speculators normally place a pay-per-click web page in place of the legitimate website visitors expect to find. A PPC page looks similar to a search engine page but the design additionally blankets the home page with a copious amount of links that are often related to the subject of the domain name. Under the normal model of business, the speculator profits from the money obtained from visitors clicking on these links. However, Zuccarini deviated from this business convention by redirecting his audience of largely children to pornographic websites.
March 2005 – Nearly 43 million .com and net domain names registered.
Only 2.5 million names were deleted that same month.
In April of 2006, 35 million names registered.
Of those names 32.7 million were used again and again but never registered permanently!
“Specifically, legislation is needed to clarify the rights of trademark owners with respect to bad faith, abusive conduct, and to provide adequate remedies for trademark owners…”