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Previous:	Eighth Circuit Applies ACPA to Anti-Abortion Cybersquatter
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Cybersquatting, Noncommercial Use and the First Amendment

by Mark VB Partridge on Thu 02 Sep 2004 10:49 AM EDT | Permanent Link

Yesterday's decision: Coca-Cola Company v. Purdy, Case No. 02-2894 (8th Cir., Sept. 1, 2004), is important reading for persons confronting cybersquatting disputes. Here are some highlights.

On the first element of the claim, the court states:

"The Question under the ACPA is not whether the domain names which Purdy registered are likely to be confused with a plaintiff's domain name, but whether they are identical or confusingly similar to a plaintiff's mark. The inquiry under the ACPA is thus narrower than the traditional multifactor likelihood of confusion test for trademark infringement. The fact that confusion about a website's source or sponsorship could be resolved by visiting the website is not relevant to whether the domain name itself is identical or confusingly similar to a plaintiff's mark." citations omitted.

Regarding the noncommercial use defense:

"While the evidence suggest that Purdy has made some noncommercial or fair use of the plaintiffs' marks in critical commentary sites accessible under the domain names, prior to the filing of this lawsuit he principally attached the names to antiabortion websites that made no mention of plaintiffs whatsoever. These websites can not be considered to be completely noncommercial since they directly solicited monetary contributions and offered various antiabortion merchandise for sale. Even after Purdy attached the domain names to his own critical commentary sites, he continued to provide links to sites that solicit funds for the antiabortion movement and sell merchandise. Such use of the domain names would apparently profit the organizations of Purdy's choice, and nothing in the ACPA suggests that Congress intended to allow cybersquatters to escape the reach of the act by channeling profits to third parties."

On the First Amendment, the Court states:

"The question raised in this case is whether the First Amendment protects a misleading use of plaintiffs' marks in domain names to attract an unwitting and possibly unwilling audience to Purdy's message. . . . While Purdy has the right to express his message over the Internet, he has not shown that the First Amendment protects his appropriation of plaintiffs' marks in order to spread his protest message by confusing Internet users into thinking that they are entering one of plaintiffs' websites."

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