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Congress meddles with cybersquatters

Lockheed Martin's Skunk Works suit chucked out, meanwhile

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There's a lot happening this week on the cybersquatting front. Different interests are lobbying in Washington over the House Bill intended to stop cybersquatting, which is being considered today. Trademark holders like the Motion Picture Association of America members are trying to push the Bill, while the Association for Computing Machinery thinks that the powers proposed in the Bill would be too great and undermine the legitimate rights of domain-name holders, even if the domain name included a trademark. The House Bill provides for damages of up to $100,000 for against domain name registrants held to have acted in bad faith, while a Senate Bill already passed provides for criminal penalties. Meanwhile, Lockheed Martin's Skunk Works went down 3-0 (judges, not goals) in the Court of Appeals for the Ninth Circuit yesterday when the dismissal of its suit against Network Solutions for registering domain names including "skunk works", a Lockheed service mark, was upheld. Whether the "skunk" refers to an animal that emits an unpleasant smell when threatened, or an exceptionally strong variety of marijuana, we do not know, but the maker of war planes has spent more than three years on the case. It's hard to believe that the average consumer would be confused when buying F-22 fighters online, or even the new space shuttle that is being designed there. Lockheed might have done itself a favour if it had followed NSI's post-registration dispute-resolution procedure by submitting a certified copy of a trademark registration to NSI, which puts the alleged cybersquatter in the position of having to prove its right to use the name, or have it cancelled. NSI did not succeed in getting its lawyer's fees paid by Lockheed because the appellate court decided that the appeal was not an "exceptional case" under the 1946 Lanham Trademark Act. The lack of any formal, legal link between trademark registers and domain names is causing a considerable problem for companies wishing to protect their intellectual property. It is a saga that has been going on for many years. In the UK, it has been possible to register company names containing trademarks, or identical with trademarks, without any come-back. Although the date of first use and registration date is generally supposed to be the key arbiter, in many cases might is proving right because of the considerable legal costs involved in any defence. The problem is that trademark registration frequently takes a year or more, whereas domain name applicants expect an almost instant service. In the US, the prospect of loads of intellectual property litigation is going to make lawyers even richer, but outside the USA, gun law will likely prevail. There will be domain-name havens, like tax havens, beyond the reach of US law that allow all manner of trickery to be continued. Consequently, the situation can only be controlled through an international organisation like ICANN, which will be issuing rules that registrants must agree to before the domain name is accepted, and having the ability to block cybersquatters. ICANN is proposing that trademark disputes be settled by an arbitration centre rather than the courts. It is doubtful whether any amelioration can be provided retrospectively, so the courts would still need to be used to regain domain names registered in bad faith. There's a curious footnote to our tale yesterday about the mountain bike domain name that was upsetting Morgan Stanley. It transpires that Morgan Stanley is itself being sued over the name it has chosen for its new investment strategies publication - The Macro Navigator. Clark Management Capital Group has a bunch of trademarks for its financial advisory services, and a newsletter called The Navigator Report. That's not quite all: before Morgan Stanley merged with Dean Witter, ms.com would not take you to Microsoft (it now goes to msdw.com), but to Morgan Stanley. Strange that Microsoft did not sort that one out. ® What the Hell is a Skunk Work? Full coverage/cyber squatting

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