Wednesday, January 04, 2012

ACPA Part 4: A Targeted Solution

Sen. Abraham
In response to the tales of horrors, Congress enacted the AntiCybersquatter Consumer Protection Act. According to the Legislative History,
"The purpose of the bill is to protect consumers and American businesses, to promote the growth of online commerce, and to provide clarity in the law for TMOs by prohibiting the bad-faith and abusive registration of distinctive marks as Internet domain names with the intent to profit from the goodwill associated with such marks—a practice commonly referred to as ‘‘cybersquatting.’’"

The ACPA was not designed to address every little problem that might arise with domain names, but to address specifically "cybersquatters." In passing the ACPA, Sen. Spencer Abraham, sponsor of the ACPA, indicated that Congress was going after a particular type of activity that was "unacceptable and outrageous."
"Whether it's people extorting companies by registering company names, misdirecting Internet users to inappropriate sites, or otherwise attempting to damage a trademark that a business has spent decades building into a recognizable brand, anyone engaging in cyber-squatting activity should be held accountable for their actions."
The Ninth Circuit Federal Court of Appeals, in interpreting Congress' intent, identified the ACPA as a solution to the Wild West atmosphere of the 1990s Internet.
"Cybersquatting is the Internet version of an unlawful land grab. Cybersquatters register well-known brand names as Internet domain names in order to force the rightful owners of the marks to come forward and pay for the right to engage in electronic commerce under their own name."
Reflecting on the narrowness of the ACPA's target, a federal district court in New Jersey stated, "The ACPA's congressional record consistently signals the drafters' intention to target a narrow class of cyber-squatters consisting of those who have the bad faith intent to profit, and not to tread on the rights of those with any other motives." A number of cases have refused to apply the ACPA in cases where the DNO "does not fit the 'classic' cybersquatter profile." 

As Prof. Michael Froomkin testified before Congress, "not every intellectual property violation on the Internet is cybersquatting." For that matter, not every online tiff between a TMO and a DNO amounts is cybersquatting. The ACPA was enacted, in the words of Congress, in response to cybersquatters, those "nefarious" individuals who were engaged in fraudulent practices of extorting DNOs, redirecting traffic to pornography or criminal sites, or defrauding customers into believing that they were interacting with the TMOs website.

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