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Trademark protection in cyberspace
Another
important type of registration, albeit not a trademark or service mark
registration, which should be considered by trademark owners is the
registration of their mark or name as an Internet domain name. The
registration procedure for an Internet domain name is relatively simple and
inexpensive, and will preserve the trademark owner’s rights in the domain
name. This is important because the music industry, particularly performing
artists, attracts numerous fans who love to show their devotion to their
favorite performers by establishing a website dedicated to them.
Unfortunately, many such websites are accessed through domain names that
consist of the performers' name. Examples include the official websites for
The Cranberries at CRANBERRIES.COM and for Green Day at GREENDAY.COM. On the
other hand, accessing the domain name SPICEGIRLS.COM leads the user to
“The totally unofficial Spice Girls fan site”. The same is true
for an unofficial website for the Beach Boys at BEACHBOYS.COM. Although this
can be flattering, it may be problematic when the performer is unable to
control the content of the website, such as controlling information concerning
the performer, controlling the dissemination of digital recordings, controlling
links to other websites that abet copyright infringement,
etc.
In the SPICEGIRLS.COM example, the website at one time listed “the
lowdown on the fantastic five. All the info you ever wanted to know about them
(and possibly quite a bit you didn't)". Since Internet users often attempt to
access information concerning a party by simply typing in their name or
trademark plus the generic Top Level Domain “.com”, music
organizations and artists should wish to have fans directed to a website which
they can control. The issue of who should control domain names, in the context
of negotiations between artists and recording companies, has also become much
more heated in recent years.
Depending
upon the format of the domain name, whether registered in a generic Top Level
Domain ("gTLDs" include .com, .org, .net and recently .info and .biz) or a
country code Top Level Domain ("ccTLDs" include two letter country
abbreviations, such as .uk in the United Kingdom, .de in Germany,
etc.),
different types of action against the unauthorized registration of a name or
trademark as a domain name may be available. For gTLD's, the Internet
Corporation for Assigned Names and Numbers, which oversees the internet, has
established a Uniform Dispute Resolution Policy (“UDRP”), by which
the rightful owner of a trademark or service mark registration may commence
arbitration-like proceedings, under certain circumstances, to recover an
unauthorized domain name. Special transitional procedures have been adopted for
the introduction of the .info, .biz and .name gTLDs. Unfortunately under the
UDRP guidelines, it is uncertain whether the adoption of a domain name by a fan
be considered to violate any rights since the fan might be regarded as having a
“legitimate interest” in the site for dissemination of information,
etc.
Such disputes may also be brought, as in traditional trademark infringement
proceedings, before the courts. Other similar dispute resolution procedures
exist with respect to a small number of ccTLD's, although the overwhelming
majority will simply leave the dispute to the courts to decide.
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