Elgar Intellectual Property and Global Development series
Chapter 3: Domain Names and Free Speech
SPEECH IN THE DOMAIN SPACE ‘We limit linguistic monopolies because ultimately we value the freedom to communicate above the freedom to own: the language of liberty is seldom heard where liberty of language has been removed from the commons.’1 Current domain name regulations focus on protecting trademarks in the domain space against bad faith commercial incursions, largely in the form of cybersquatting.2 A variety of options are available for trademark holders to protect their marks in the domain space, including actions for trademark infringement3 and dilution,4 as well as actions under the newer anti-cybersquatting provisions of the Lanham Act in the United States.5 More globally, and inexpensively, the Uniform Domain Name Dispute Resolution Policy has proved a popular dispute resolution mechanism for cybersquatting disputes.6 As trademark protections online have broadened in scope, the tension between trademarks and free speech has intensified. When trademark rights were limited to the prevention of consumer confusion via the traditional trademark infringement action, free speech was less likely to be implicated. However, when trademarks are protected against unauthorized uses that relate to things other than consumer confusion and may, in fact, involve commentary, criticism, artistic expression, and the like, the First Amendment can and should come into play.7 Kevin Gray, Property in Thin Air, 50 Cambridge L.J. 252, 286 (1991). Jonathan Nilsen, Mixing Oil with Water: Resolving the Differences Between Domain Names and Trademark Law, 1 J. High Tech. L. 47, 51 (2002) (‘Cybersquatting has been defined several ways. The most general definition of...
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