Wednesday, January 16, 2013

No Cybersquatting Liability where Defendant Set up Gripe Website to Criticize Plaintiff #ACPA

FACTS:  Defendant "sought a loan from [Plaintiff] and the parties entered into an agreement under which [Plaintiff] would attempt to fund the loan in exchange for a $37,500 commitment fee. After [Plaintiff] did not fund the loan and did not refund the commitment fee, [Defendant] created a website with the domain name "" and used the website to warn other consumers about what it perceived to be [Plaintiff]'s fraudulent business practices." 

Plaintiff Sued Defendant for a violation of the AntiCybersquatter Consumer Protect Act and other claims.  Defendant moves for Summary Judgment.

RULE:  "To prevail on a cybersquatting claim, [Plaintiff] must establish three elements: (1) that [Plaintiff]'s mark is distinctive or famous; (2) that [Defendant]'s domain name is identical or confusingly similar to [Plaintiff]'s mark; and (3) that [Defendant] used, registered, or trafficked in the domain name with a bad faith intent to profit from the sale of the domain name."

ANALYSIS:  Defendant's website is a "gripe site," not actionable under the ACPA. Defendant "alleges that it registered the domain name "" and maintained the website in a legitimate, good faith attempt to warn other consumers about what it believed were [Plaintiff]'s fraudulent business practices...[Plaintiff] offers no evidence suggesting that [Defendant] intended to profit by creating the website. [Plaintiff] does not allege that [Defendant] offered to sell the domain name to [Plaintiff] or anyone else, nor does [Plaintiff] allege that [Defendant] offered to take down the website in exchange for money. "
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