Интернет домендерін тіркеуде сауда белгілерін қорғау туралы АҚШ заңы

The Anticybersquatting Consumer Protection Act (ACPA), 15 U. S. C. § 1125(d),(passed as part of ) is a U. S. law enacted in 1999 that established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name. The law was designed to thwart "cybersquatters" who register Internet domain names containing trademarks with no intention of creating a legitimate web site, but instead plan to sell the domain name to the trademark owner or a third party. Critics of the ACPA complain about the non global scope of the Act and its potential to restrict free speech, while others dispute these complaints. Before the ACPA was enacted, trademark owners relied heavily on the Federal Trademark Dilution Act (FTDA) to sue domain name registrants. The FTDA was enacted in 1995 in part with the intent to curb domain name abuses. The legislative history of the FTDA specifically mentions that trademark dilution in domain names was a matter of Congressional concern motivating the Act. Senator Leahy stated that "it is my hope that this anti dilution statute can help stem the use of deceptive Internet addresses taken by those who are choosing marks that are associated with the products and reputations of others". Toeppen was using the domain panavision. com to display photographs of Pana, Illinois, and, when asked to cease, he offered to sell the domain name to Panavision for $13,000. A trademark is famous if the owner can prove that the mark "is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner". "Trafficking" in the context of domain names includes, but is not limited to "sales, purchases, loans, pledges, licenses, exchanges of currency, and any other transfer for consideration or receipt in exchange for consideration". The ACPA also requires that the mark be distinctive or famous at the time of registration. In determining whether the domain name registrant has a bad faith intent to profit, a court may consider many factors, including nine that are outlined in the statute:
Registrant's trademark or other intellectual property rights in the domain name;
Whether the domain name contains the registrant's legal or common name;
Registrant's prior use of the domain name in connection with the bona fide offering of goods or services;
Registrant's bona fide noncommercial or fair use of the mark in a site accessible by the domain name;
Registrant's intent to divert customers from the mark owner's online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;
Registrant's offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;
Registrant's providing misleading false contact information when applying for registration of the domain name;
Registrant's registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others; and
Extent to which the mark in the domain is distinctive or famous. The ACPA does not prevent the fair use of trademarks or any use protected by the First Amendment, which includes gripe sites. In Mayflower Transit, L. L. C. v. Prince, 314 F. Supp. 2d 362 (D. N. J 2004), the court found that the first two prongs of Mayflower's ACPA claim were easily met because (1) their registered trademark was distinctive and (2) Defendant's "mayflowervanline. com" was confusingly similar to Plaintiff's Mayflower trademark. However, when the court was examining the third prong of Plaintiff's ACPA claim, whether Defendant registered its domain name with the bad faith intent to profit from Plaintiff, the court found Defendant had a bona fide noncommercial use of the mark, therefore, the ACPA claim failed. "Defendant's motive for registering the disputed domain names was to express his customer dissatisfaction through the medium of the Internet." The domain name registrar or registry or other domain name authority is not liable for injunctive or monetary relief except in the case of bad faith or reckless disregard. While § 1125 protects trademark owners, 15 U. S. C. § 1129 protects any living person from having their personal name included in a domain name, but only when the domain name is registered for profitable resale. The Ninth Circuit Court of Appeals caused a stir in 2013 when it held, in Petroliam Nasional Berhad (Petronas) v. GoDaddy. com, 737 F.3d 546 (9th Cir. 2013), petition for cert. denied 135 S. Ct. 55 (2014), that there is no cause of action for contributory cybersquatting, i. e. secondary liability under the ACPA. It so held notwithstanding the extensive body of case law permitting such liability where a registrar is shown to have acted outside the normal ministerial bounds of domain registration. It also relied on Central Bank of Denver v. First Interstate Bank of Denver and premised on the Circuit Court's determination that the ACPA is not part of the Lanham Act and therefore not included in the rule permitting secondary liability for trademark infringement enunciated in Inwood Labs v. Ives Labs, 456 U. S. 844 (1982).

Instead of suing in federal court under the ACPA, a trademark owner can choose to pursue an administrative proceeding under ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP allows a trademark owner to challenge domain name registrations in expedited administrative proceedings. Domainers can make a lot of money by buying and selling domain names. If the domain is dropped within the five day grace period, no fee is incurred. In Verizon California, Inc. v. Navigation Catalyst Systems, 568 F. Supp. 2d 1088 (C. D. Cal. 2008), the domainer lost under the ACPA. One of the defendants, Basic Fusion, Inc. argued that they were not cybersquatters, but as an Internet registrar accredited by ICANN they could register domain names on behalf of its customers and it specialized in "bulk registration". Navigation Catalyst Systems, another defendant and a customer of Basic Fusion, used their "proprietary automated tool" to find domain names that were not already registered and then registered them using Basic Fusion. Plaintiff Verizon argued that defendants "registered" 1,392 domain names that were confusingly similar to plaintiff's trademarks.