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

On the issue of a blanket exclusion of [famous mark].[tld]s, wg-b appears
split along the following lines:

1. Those opposed to such an exclusion believe that it (a) raises an
appreciable first amendment problem, and/or (b) is unworkable because the
concept of "famous mark" is not well-defined.

2. Those in favor of such an exclusion believe that there are no free speech
or definitional problems, or at least that such problems are manageable and
are far outweighed by the benefits of a famous mark exclusionary rule.

Is this a fair summary?

Steve Hartman

> -----Original Message-----
> From:	Martin B. Schwimmer [SMTP:martys@interport.net]
> Sent:	Friday, January 28, 2000 10:52 AM
> To:	wg-b@dnso.org
> Subject:	Re: [wg-b] Second Circuit on First Amendment Analysis of
> Domain Names
> In the context of our discussion of exclusion of the form [famous
> mark].[tld] (and not [any other mateiral plus][famous mark].[tld]), the
> following language, in my opinion, suggests that there is virtually no
> scenario where [famous mark].[tld] would not be treated as a source
> identifier (and therefore an exclusion would be appropriate). 
> "We do not view Planned Parenthood Federation of America v. Bucci as
> holding
> to the contrary. See No. 97 Civ. 0629, 1997 WL 133313, at *10-11 (S.D.N.Y.
> Mar. 24, 1997), aff'd, 152 F.3d 920 (2d Cir. 1998) (unpublished table
> decision). In Bucci, a trademark infringement case, the court held that
> the
> defendant's particular use of the domain name "plannedparenthood.com" was
> as a "source identifier" rather than a "communicative message," while
> leaving open the possibility that a domain name could constitute such a
> message under other circumstances. See id. In reaching this conclusion,
> the
> Bucci court conducted precisely the kind of particularistic,
> context-sensitive analysis that is appropriate here, including analyses of
> the domain name itself, the way the domain name is being used, the
> motivations of the author of the website in question, the contents of the
> website, and so on. See id. Domain names and gTLDs per se are neither
> automatically entitled to nor excluded from the protections of the First
> Amendment, and the appropriate inquiry is one that fully addresses
> particular circumstances presented with respect to each domain name."
> At 12:37 AM 1/27/00 -0500, you wrote:
> >
> >----- Original Message -----
> >From: "Martin B. Schwimmer" <martys@interport.net>
> >
> >
> >> Of special interest to this group is the discussion of the interplay
> >> between the First amendment and domain names.  In this particular case,
> it
> >> was held that a TLD suffix would not rise to the level of protectable
> >> speech
> >
> >The court held that the specific TLDs "com" "net" and "org" do not raise
> >first amendment issues because they are not expressive of anything, but
> it
> >went out of its way to note that some TLDs could indeed possess enough
> >content to be protected as political speech or parody. See below:
> >
> >> In short, while we hold that the existing gTLDs do not constitute
> >protected
> >> speech under the First Amendment, we do not preclude the possibility
> that
> >> certain domain names, including new gTLDs, could indeed amount to
> >protected
> >> speech. The time may come when new gTLDs could be used for "an
> expressive
> >> purpose such as commentary, parody, news reporting or criticism,"
> >> comprising communicative messages by the author and/or operator of the
> >> website in order to influence the public's decision to visit that
> website,
> >> or even to disseminate a particular point of view. United We Stand Am.,
> >> Inc. v. United We Stand Am. N. Y., Inc., 128 F.3d 86, 93 (2d Cir. 1997)
> >> (citation omitted).
> >
> >
> >
> >
> >
> @ @ @ @ @ @ @ @ @