Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
For permission, see CMI.

Questions and Notes on Cybersquatting

1.  Based upon Lanham Act 43(d), how would you define "cybersquatting"?  What are the elements of this "tort"?  What actions or activities would you advise a person thinking of using a well-known trademark or similar symbol as a domain name to do and to avoid?  a person thinking of registering many common symbols as domain names?

2.  Apply Section 43(d) (which had not been adopted at the time) in detail to the facts of the Toeppen case and take notes on your analysis.  Would Toeppen have been liable under Section 43(d)?  What facts of the case would you emphasize as plaintiff, and what subsections and factors would you cite?  as defendant?  How would you draw the balance of factors?

3.  Late in 1999, the Internet community created its own answer to cybersquatting.  That answer is entirely a matter of private arbitration under private contract.  Yet it has helped resolve many cybersquatting disputes quickly and without litigation.  (For more on this fascinating story, see Jay Dratler, Jr., Intellectual Property Law: Commercial, Creative, and Industrial Property 9.01[7][b] (Law Journal Press 1991), available on LEXIS at the following path: Secondary Legal : View More Sources : Law Journal Press : [title of treatise] : Chapter 9 : Section 9.01.)

A private corporation promulgated the rules of the game.  Called the Internet Corporation for Assigned Names and Numbers, or ICANN, this corporation was set up to take over management of the Internet's Domain Name System (DNS) from the National Science Foundation and its exclusive private franchisee, Network Solutions, Inc. (NSI) after a political decision to broaden commercial participation.  (Many private parties wanted a piece of the action after NSI sold in early 2000 for $17 billion.)  Although ICANN is a California nonprofit corporation, its members come from, and its directors directors are elected from, all over the world.  It is supposed to run the DNS in the best interests of Internet users worldwide.  Its Website, from which it controls its far-flung empire, is located at www.icann.org.   We will study ICANN's private arbitration regime for cybersquatting next time.

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