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

["Martin B. Schwimmer" <martys@interport.net>]

PLANNED PARENTHOOD is a mark for a service which generates perhaps more
political speech than any other topic in the US.  Someone used
plannedparenthood.com for a site which made authentic political speech
about Planned Parenthood.  There could not be a more political context.  It
is the extreme case.  The Circuit Court still held that the
plannedparenthood.com domain name was functioning as a source identifier
and enjoined the use. NewYorkYankees.com or MoetetChandon.com can only be
less political, less likely to generate public debate.  If the extreme case
of [mark].com merited injunction, then you can mechanically apply the
exclusion (and if you can posit an exception, then challenge the famous
mark designation in that case - it's clear which way the presumptions
should lie in this situation).


At 11:51 AM 1/28/00 -0500, you wrote:
>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."
>>
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