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

[Milton Mueller <mueller@syr.edu>]

Not sure how you jump to that conclusion. The court calls for ""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." Exclusions are mechanical and not context-sensitive,
obviously.

Martin B. Schwimmer wrote:

> 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).
>
> 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."
>