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Re: [wg-b] Second Circuit on First Amendment Analysis of Domain Names
It would be nice to be able to distinguish a pesky case before the Second
Circuit by merely stating "au contraire."
The two variables, context [speech vs. non-speech] and the domain name
used by defendant [identical to another's mark vs. variations on the mark
(as in: anti-plannedparenthood.com), create a range of situations. The
particularistic, context-sensitive analysis is deployed to this range. OK,
nobody argues with that.
In the class of situations we are talking about here - where the SLD is
identical to the mark, even in the most political context, where defendant
was commenting on the politics of the mark owner, the court held that there
was an infringement. That creates the presumption that that entire class
of cases should come out the same way and that's why you can apply a
mechanistic rule to that class of cases thereafter (with the ability of
challenging the famous mark designation as the safety valve).
Please posit a hypo of [famousmark].tld that would be distinguished from
plannedparenthood.com (and jewsforjesus.org and papalvisit.com) using the
TLDs on the table.
At 01:43 PM 1/28/00 -0500, you wrote:
>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
>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.
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