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No fame, no domain gain

Internet Security Threat Report 2014

Only famous people who trade on their name have any chance of winning control of internet addresses containing their name, according to a decision by the World Intellectual Property Center (WIPO).

Publishing executive David Pecker lost the right to gain control of davidpecker.com in a case judged by the WIPO Arbitration and Mediation Center. It found that Pecker failed to demonstrate that he had rights to the name davidpecker.com other than "broad assertions".

The domain name is currently held by a Mr Ferris of California. The domain name redirects traffic to a 'parking' service at sedo.com, where adverts are displayed based on keywords and the domain name owner is paid for clicks. The page for davidpecker.com displayed pornographic adverts. "This is because the word ‘pecker’ is within the domain name, and Sedo.com uses that as a keyword to try and display relevant ads," Ferris told the arbitration panel. 'Pecker' is a US slang term for penis.

The two parties had attempted to negotiate a sale of the domain, with Pecker's lawyer initially offering $100 for the address. He was told that the only acceptable starting bid was $1,000, and was later offered the domain for $1,600. "That offer was rejected and negotiations continued until [Ferris] demanded $15,000 in order for him to forgo registering other domain names with the name ‘Pecker’," said Pecker's submission to the panel.

In order to gain control of a domain a person or company has to prove three things. They have to show that the domain is the same or confusingly similar to a trade mark or service mark in which the person has rights; that the other party has no legitimate interests or rights in the domain, and that it was registered or is being used 'in bad faith'.

In order to gain control of a domain you must fulfil all three conditions, so if the Panel finds one step which you fail it rarely considers the other two.

The Panel found that Pecker could not show that he had a trade mark or service mark right in the name David Pecker, so could not gain control of the domain. Other Panels had found in the cases of famous people that being famous, and therefore trading under your name, did sometimes qualify for that step.

"In this case, Complainant has provided no evidence of his rights in the Disputed Domain Name other than broad assertions that he 'is known nationally and internationally by the name David Pecker and his high profile name is linked inextricably with AMI and is cited frequently by the media', and an affidavit from AMI’s assistant general counsel that Complainant 'possesses a strong common law service mark in his name by virtue of his position as being one of the leaders in the publishing industry'," said the ruling.

"The Complaint does not provide any exhibits showing Complainant’s use of the name as a trademark. Nor has Complainant provided any evidence other than the cited statements that the name is being used for trade or commerce," it said.

"In light of the above, the Panel is not convinced, based on the limited record before it, that Complainant has established rights in the name “David Pecker” for the purpose of this proceeding. Therefore, the Panel finds that Complainant has not succeeded in proving the first element of the Policy."

The Panel conceded that the issue is complex, and had come up many times before. "A number of disputes under the Policy have involved personal names, as here, and the panels’ decisions have been mixed on the issue of whether the complainants have rights in the names," it said, referring to a previous case involving Tom Cruise which found that Cruise did have rights in his name.

The Panel said that Pecker was free to pursue his case through the courts, where the Anticybersquatting Consumer Protection Act could provide him with a course of action.

See: The Decision

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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