Monday, February 20, 2012

ACPA Part 9: Failed Conspiracies: "It's All About Trademark"

In reviewing 11 years of AntiCybersquatting Consumer Protection Act (ACPA) cases, I came up with a number of conspiracy theories that could be tested but did not pan out.  The next few posts are my failed conspiracy theories.

The first theory, which assumes that ACPA decisions have gone astray, is that when the courts conduct their ACPA analysis, they always consider the Good Faith (aka mitigating) Factors, treating them like a standard trademark infringement analysis, and hold it against the Domain Name Owners (DNOs). According to this theory, the courts only consider the Bad Faith Factors (aka aggravating), which deal directly with cybersquatting, only when it's convenient to the courts outcome. Furthermore, according to the theory, the courts consider the trademark-like factors more often than the domain name registration factors. In other words, if you mess with someone's trademark, it matters a lot; how your register domain names doesn't matter so much.

But all this turns out not to be true.

In the 67 cases reviewed:
  • the average percentage of Good Faith Factors considered is 59%; and
  • the average percentage of Bad Faith Factors considered is 60%. 
If we plot the percentage of Good Faith Factors considered against the percentage of Bad Faith Factors considered, on an individual litigation basis, nothing jumps out suggesting that Good Faith Factors are favored.

On average, the more that Good Faith Factors are considered, the more Bad Faith Factors are considered.

There is one interesting distinction between the treatment of Good Faith Factors and Bad Faith Factors: the "neutral" score. In consideration of the Bad Faith Factors, some courts  scored the Bad Faith Factors as "neutral." For example, if the DNO had provided accurate information in the domain name registration, instead of scoring this in favor of the DNO, the court would score it as "neutral." Conversely, Good Faith Factors were rarely scored as neutral. The Good Faith Factors were scored as "Neutral" 6 times where the Bad Faith Factors were scored as "Neutral" 25 times.

To be clear, I support the “Neutral” score. On the mitigating factors, the factors should either justify the DNO’s actions, or they should be neutral. On the aggravating factors, either they should cast further aspiration on the DNO’s actions, or they should be neutral. I am not objecting to the neutral score. However, One would expect to see these equally balanced between the good faith factors and the bad-bad faith factors – the fact that they are not, this is where some sandbagging may be taking place.

Next: Another Failed Conspiracy
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