Article by Jacqueline D. Lipton
Abstract: When the Oscar-winning actress Julia Roberts fought for
control of the domain name, what was her aim? Did she want to reap
economic benefits from the name? Probably not, as she has not used the
name since it was transferred to her. Or did she want to prevent others
from using it on either an unjust enrichment or a privacy basis? Was
she, in fact, protecting a trademark interest in her name? Personal
domain name disputes, particularly those in the <name.com> space,
implicate unique aspects of an individual's persona in cyberspace.
Nevertheless, most of the legal rules developed for these disputes are
based on trademark law. Although a number of individuals have
successfully used these rules in practice, the focus on trademark law
has led to inconsistent and often arbitrary results. Additionally,
commentators have questioned recent expansions of trademark law in the
Internet context.
This Article develops a new framework for personal domain name disputes based on the theories underlying the right of publicity tort. Unlike trademark law, this tort is aimed at the protection of individual names and likenesses. It has not been utilized much in cyberspace largely because of time, cost, and jurisdictional disadvantages of litigation as opposed to the quicker and cheaper, but trademark-based, Uniform Domain Name Dispute Resolution Policy ("UDRP"). This article suggests the creation of a new personal domain name dispute resolution policy ("PDRP") that combines the procedural advantages of the UDRP with the theory underlying the right of publicity tort.
To read this Washington and Lee Law Review article in full on the Social Science Research Network website, go to ssrn.com/abstract=1124596.