Internet Domain Names, Trademarks and Free Speech
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Internet Domain Names, Trademarks and Free Speech

Jacqueline Lipton

This comprehensive examination of domain name disputes involving personal names and political and cultural issues sheds light on the need to balance trademark policy, free speech and other pressing interests such as privacy and personality rights. The author stresses that because domain names can only be registered to one person at a time, they create problems of scarcity not raised by other forms of digital assets. Also discussed are the kinds of conflicts over domain names that are not effectively addressed by existing regulations, as well as possible regulatory reforms.
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Chapter 6: The Boundaries of Bad Faith in the Domain Space

Jacqueline Lipton


CLICKFARMING, TYPOSQUATTING AND BAD FAITH The discussion in Chapters 2 through 5 highlighted conduct in the domain space that is problematic because it relates to balancing competing legitimate interests in particular words or phrases. Balancing rights in competing trademarks, free speech, personal names, and political, cultural and geographic signifiers are difficult challenges in the face of rivalrous online property like domain names. This chapter turns the focus to the appropriate boundaries of domain name regulation, with particular emphasis on conduct that might more readily be described as being in bad faith. The discussion focuses on case studies involving clickfarming and typosquatting. Clickfarming is the registration and use of a domain name corresponding with another person’s trademark (or perhaps some other interest) for the purposes of raising advertising revenues from clickthrough advertisements on the associated webpage.1 Typosquatting refers to a domain name registrant taking advantage of common misspellings of trademarks – or other legitimate interests by registering those misspellings as domain names, usually for financial benefit.2 Clickfarming and typosquatting may occur simultaneously, depending on the circumstances. In other words, a clickfarmer may elect to register a common misspelling of a trademark as a domain name in order to use the associated website as a clickfarm. Additionally, clickfarmers may also engage in traditional cybersquatting.3 A clickfarmer may attempt to make money utilizing someone else’s trademark, or a common misspelling of Jacqueline Lipton, Clickfarming: The New Cybersquatting?, 12. J. Internet Law 1 (2008). 2 David Lindsay, International Domain Name Law: ICANN and the UDRP...

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