Abstract: This Article suggests the time is ripe for the
United States Supreme Court to interpret the fair use defense of free
speech or parody under the Anticybersquatting Consumer Protection Act
("ACPA"). The ACPA was enacted in 1999 to protect consumers from
"cybersquatting," or when a non-trademark holder registers a domain name
of a trademark and attempts to: (1) sell the name either to the holder
for a ransom or to the highest bidder; or (2) divert or confuse
consumers.
Although published decisions from the circuit courts interpreting the
ACPA continue to explore the marriage of trademark protection with the
First Amendment's protections of domain names and websites as free
speech, a conflicting criteria has emerged regarding when an alleged
cybersquatter can successfully assert the fair use defense. For example,
the Tenth Circuit's standard is that it must be immediately apparent to
anyone visiting a parodic website that it was not the trademark owner's
website. However, the Fourth Circuit's criteria is whether the domain
name at issue conveys two simultaneous, yet contradictory, messages:
that it is the original and that it is not the original and is instead a
parody. Such inconsistent criteria has the potential to render an
alleged cybersquatter victorious in one circuit, yet liable in another
circuit.
This Article's circuit-by-circuit analysis exposes the vast
inconsistencies between the circuit courts' decisions and argues that
the United States Supreme Court should, by granting a petition for a
writ of certiorari, articulate the standard for the ACPA's fair use
defense based upon free speech or parody.
To download and read this research paper in full, see:
ssrn.com/abstract=1574367
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