Monday, March 05, 2012

The Wayward #ACPA Part 12: Which Factors Favors Which Party the Most

In these series of blog posts, we have been reviewing 11 years of AntiCybersquatting Consumer Protection Act cases, and the 9 factors which make up the bad faith analysis.  As we have seen, the 9 factors are grouped in two groups:  the Good Faith or Mitigating Factors (most like trademark) and the Bad Faith or Aggravating Factors (deal with the DNS stuff). 

In this post, we ask a simple question: which factor favors which party the most.  The results were surprising. 
  • The factors that most favored DNOs were the Bad Faith Factors. 
  • The factor that favored DNOs the most was Factor 7: Misleading Information, which went in favor of DNOs 68% of the time. 
  • The other factor that favored DNOs the majority of the time was Factor 6: Offer to Sell, favoring DNOs 55% of the time. 
  • Factor 8, Multiple Domain Name Registrations, favored DNOs only 40% of the time, even though the median number of domain names at issue is two (read that over a few times to get an idea of why the ACPA has gone astray).
Recall that in general, 64% of cases went in favor of TMOs. That 64% average can be used as a baseline.  
  • All of the Good Faith Factors went in favor of TMOs more than 64% of the time. 
  • None of the Bad Faith Factors went in favor of TMOs more than 64% of the time (Factor 5: Intent to Divert is on the 66%-line).
For the Good Faith Factors, the spread of the factor that went in favor of TMOs the most and the one that went in their favor the least was 14 percentage points; a relatively constrained spread. For the Bad Faith Factors, the spread was 60 percentage points. There is a greater dynamic with the Bad Faith Factors than for the Good Faith Factors.

One factor looks out of place. Factor 9, Famous Trademark, looks more like a Good Faith Factor than a Bad Faith Factor. The Good Faith Factors are traditional trademark law considerations (fair use, prior use, famous); the Bad Faith Factors are all unique to the Internet (diverting domain names, false information in domain name registration). Factor 9 looks more like the Good Faith (Trademark) factors and in fact is scored more like the Good Faith Factors. If we move Factor 9 over to the Good Faith Factors, the spread of percentage points for the Good Faith Factors changes from 14 to 16 points (a marginal change), where this move changes the spread of the Bad Faith Factors from 60 points to 34 points (a 26 point change).

Chart above compares number of cases factors was scored in favor of TMO as opposed to in favor of DNO; "neutral" scores were ignored.

Next: Which Set of Factors are Most Important?
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