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

["Hartman, Steve" <HartmanS@Nabisco.com>]

None of the existing gTLDs would appear to raise a potential first amendment
issue. The court appears to recognize that fact. Exclusion of
[famousmark].[gtld], at least as applied to currently existing gTLDs, is not
undermined by the decision.

Steve Hartman

> -----Original Message-----
> From:	Milton Mueller [SMTP:mueller@syr.edu]
> Sent:	Friday, January 28, 2000 1:44 PM
> To:	Martin B. Schwimmer
> Cc:	wg-b@dnso.org
> Subject:	Re: [wg-b] Second Circuit on First Amendment Analysis of
> Domain Names
> 
> 
> 
> Martin B. Schwimmer wrote:
> 
> > 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.
> 
> Yep. That's "particularistic, context-sensitive analysis." I agree with
> the
> method and the outcome.
> 
> > If the extreme case of [mark].com merited injunction,
> 
> Here's where you go wrong. As soon as you talk about [mark].[tld] you are
> no
> longer in a case-specific, particular context, where the "way the domain
> is
> being used," the "motivations of the author of the website" and the
> content of
> the website can be evaluated.
> 
> We can have a substantive debate about exclusions, but there's no way your
> position gets any support from the Appeals Court decision. Au contraire.
>