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Wednesday, October 08, 2008

Comments

Steve Daily

As browsers have become more sophisticated, simply typing a trademark into the address bar has become a (usually) reliable way to be taken directly to the trademark owner's site. There is no need to add "http://www” or even, with some browsers, ".com". Most users do not want or expect to see a personal gripe site when they do this. If it does happen, many frustrated users will simply go to a competitor's site or just abandon the search. As a result, the shrewd domain owner who registered [trademark].com now has significant economic leverage with which to extort payment from the trademark owner. All he or she has to do is throw up some kind of non-commercial speech (the more scurrilous the better) and wait for the offer.

Based on the equities and public policy concerns here, I have no trouble with the Curt Manufacturing result. Arbitration proceedings are not courts of law, and part of the bargain is that you may get decisions that are out of line with the latest case precedents. The better question is whether the result is just and reasonable.

Marc J. Randazza

I agree that the UDRP has its flaws. However, I don't agree with Prof. Mueller. The UDRP is, for the most part, a relatively fair process. In fact, it has some built in problems for complainants.

Nevertheless, the failure of a strong majority of panelists to apply fair use / free speech principles to UDRP cases is a definite problem.

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