Re: [wg-b] Second Circuit on First Amendment Analysis of Domain Names

[Milton Mueller <mueller@syr.edu>]

Martin B. Schwimmer wrote:

> PLANNED PARENTHOOD is a mark for a service which generates perhaps more
> political speech than any other topic in the US.  Someone used
> plannedparenthood.com for a site which made authentic political speech
> about Planned Parenthood.  There could not be a more political context.  It
> is the extreme case.  The Circuit Court still held that the
> plannedparenthood.com domain name was functioning as a source identifier
> and enjoined the use.

Yep. That's "particularistic, context-sensitive analysis." I agree with the
method and the outcome.

> If the extreme case of [mark].com merited injunction,

Here's where you go wrong. As soon as you talk about [mark].[tld] you are no
longer in a case-specific, particular context, where the "way the domain is
being used," the "motivations of the author of the website" and the content of
the website can be evaluated.

We can have a substantive debate about exclusions, but there's no way your
position gets any support from the Appeals Court decision. Au contraire.