FC: One more reply to MPAA nastygramming RatedNC-17.com over trademark

[Declan McCullagh <declan () well com>]

Previous Politech message:
http://www.politechbot.com/p-04821.html

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From: "Powers, Jamie" <JPowers () comscore com>
To: "'declan () well com'" <declan () well com>
Cc: "'NC-17'" <nc-17 () ratednc-17 com>
Subject: RE: Replies to MPAA nastygramming RatedNC-17.com over trademark
Date: Fri, 6 Jun 2003 09:38:08 -0400

Declan,

The fact that a website doesn't declare the relationship between its domain
and the site itself is relevant - but not dispositive - and the suggestion
to capitulate
would seem premature.

I've accepted for argument the 'fact' that this user claims that the domain
registered was and remains the exact online name he had used and become
known for.  (The MPAA will and should challenge that assertion).
But assuming it is true, the user then adopts a domain and posts rambling
personal text and coder/developer stuff.
Nothing on entertainment, nothing on ratings, films, movies or media.

Going further, nothing on the site is about web content filters (MPAA might
argue (and credibly so) that the ratings systems is an info system designed
to allow people to 'filter' movie content) or anything even remotely related
to reviews, classifications or typing of media. So where's the infringement
or the dilution here?  Only in the demand letter.

And I'd be inclined to suggest he bail on the domain if there is actual
confusion occurring because of his use.
So, is there some actual confusion arising from this domain use?
I believe if MPAA had instances of actual confusion they'd of cited them.
Under our Lanham Act (the fed tm law), actual confusion is manna from
trademark heaven.
And even if he did not mean for confusion to occur, it is then only innocent
infringement where the party lacked intent to cause the harm but still has
to change the mark.
So

Does anyone see bad faith intent here?  Intent to do what?  If his site had
movie reviews, media issues, or anything a reasonable person would be misled
or confused by I'm all for challenging the use.
But here, the MPAA wants the term as absolute property.

And Declan, I litigated one of the net's earliest domain name disputes -
sandals.com - SDNY 1995 and have handled a number of domain and cyber
squatting matters.  My opinion is that IP hegemony is becoming a real issue
and fair use is becoming a really neglected legal beast.  I'm just trying to
defend what might be fair use here.

Jamie




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