ACPA Part 7: Safe Harbor (no mere tiffs allowed)

At the end of the AntiCybersquatting Consumer Protection Act nine factors is the Safe Harbor Provision, which acts as a failsafe and reiterates Congressional intent:

Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.

15 U.S.C. § 1125(d)(1)(B)(ii). See also 15 U.S.C. § 1125(d)(1)(B)(i)(IV) (fair use).

This is designed as a bright line test. Unlike the nine factors, this consideration is not discretionary. This is not a factor placed down as guidance; Congress clearly states that bad faith shall not be found in cases where it is believed that the use is legal or fair use. For example, the safe harbor protects uses such as parody and commentary and use by persons ignorant of another’s superior right to the mark. Mattel, Inc. v. Barbie-Club. com, 310 F. 3d 293, 906-07 (2nd Cir 2002); 15 U.S.C. § 1114 (innocent infringement by publishers); 15 U.S.C. § 1115 (innocent infringement as a defense to right to use a mark). Congress is making clear that Congress is specifically targeting nefarious cybersquatters with the ACPA; the ACPA is not to be extended to other mere tiffs.

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