Wednesday, February 29, 2012

The Wayward ACPA Part 10: “More Reasoned Decisions Mean Domain Name Owner Wins”

Looking over 11 years of AntiCybersquatting Consumer Protection Act (ACPA) caselaw, I can now test how the courts have wandered astray. Last post, I tested my conspiracy theory that the court’s analysis was all about trademark, and they ignored the unique characteristics of the Internet. That proved not to be so true. 

This time, my conspiracy theory is that in order to favor trademark owners (TMO), courts pick and choose which factors to consider. When the court’s arbitrarily focus on a few select factors, then, according to my theory, you know its going in favor of the TMO; a more reasoned approach that considers all the factors of the case would certainly go in favor of the Domain Name Owner (DNO).

And…… no. Not true.

In fact the exact opposite is true. The more factors considered, the more likely the TMO prevails. When the court considered five or fewer factors, the DNO won 50% of the time. When the court considered six or more factors, the DNO won only 21% of the time. The most number of cases broken out by number of factors considered was 19 cases resolved using 9 factors, where DNOs won only 21% of the time. TMO's highest winning percentage was 100% when 7 factors were considered; DNO's highest winning percentage was 100% when 0 or 1 factors were considered. 



Next: A Conspiracy Theory I Actually Get Right
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