“Sucks” Sites Don’t Violate US Trademark Law

We hold today that the noncommercial use of a trademark as the domain name of a website – the subject of which is consumer commentary about the products and services represented by the mark – does not constitute infringement under the Lanham Act.

So says the 9th Circuit in Bosley Medical Institute v. Kremer.

It's important to keep decisions like this in mind when dealing with WIPO's Borg-like attempts to route around US trademark law by trying to “restate” or “explain” the UDRP, the arbitration-like system which ICANN has imposed on domain name disputes. WIPO is trying to get its arbitrators to think that either they or WIPO are the source of the substantive law that applies in domain name disputes. But that's not what the UDRP says — it clearly refers to the national law that would be applied against a defendant in a court case. WIPO opposed that rule during the drafting of the UDRP but was forced to accept it. It's been chipping away at it ever since.

An example of this is WIPO's recent push for “consistency” in UDRP decisions — something that flies in the face of the agreement that the UDRP should seek to replicate the decisions that would be reached in national courts — decisions which are not the same, as the national law differs. The decisions should be consistent with the relevant national law — not with each other.

Decisions like this — which hold First Amendment values as superior to commercial claims that the law should shield them from effective critique — differ from the law that applies in the UK and on most of the European Continent (especially Germany and Belgium). But they're our rules, and we have a right to them until our legislature changes them.