This is reproduced from an article on Citmedialaw.org. It’s an interesting decision concerning freedom of speech online and the use of trademarks. It’s also a glimpse into how expression on the web is managed today. The web is a new creation that has its own laws and governance, really, especially in the US!
Back in 2006, Robert Arkow, a self-styled consumer advocate who played a role in establishing the California (and then federal) Do Not Call lists, created a website at “metrolinkriders.com.” The site hosts a forum for users and employees of Metrolink, the local commuter railway service in southern California, to comment upon Metrolink’s services and policies. A small group of readers frequent the site, contributing on topics like possible fare increases and customer service issues. The Southern California Regional Rail Authority (SCRRA), the government authority that runs Metrolink, took umbrage and ended up initiating an administrative proceedings against Arkow under to the Uniform Domain Name Dispute Resolution Policy (UDRP). Recently, Arkow won his case.
Many readers may be unfamiliar with the UDRP, as Arkow probably was when he received the SCRRA’s complaint back in March 2008. When you register a domain name, at least with ICANN-approved domain registrars, you automatically agree to be bound by the term of the UDRP, which creates an administrative procedure for resolving trademark-related domain name disputes. ICANN adopted this policy to provide a cheap and efficient way to resolve cybersquatting disputes without resorting to the courts of any one particular country. (Not a bad idea given the potential international dimensions to these disputes.) The procedure is sort of like an arbitration, meaning that a private actor renders judgment, rather than a government official like a judge. The procedure is streamlined compared to a lawsuit because the decision-maker relies soley on the written submissions of the parties, and the whole thing can take place remotely. The decision-maker only has the power to cancel or transfer ownership of a domain name; it cannot order the loser to pay damages, and all UDRP proceedings are subject to review by courts.
Importantly, a UDRP decision-maker does not apply U.S. trademark law, so the First Amendment protections (discussed in detail in Using the Trademarks of Others) won’t necessarily help you out in a UDRP proceeding. Besides cheapness and efficiency, this may be another reason why a trademark owner would choose the UDRP route rather than a traditional lawsuit. To win, a complaining trademark owner must show three things:
- your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
- you have no rights or legitimate interests in respect of the domain name; and
- your domain name has been registered and is being used in bad faith.
This is similar to what is required to establish a violation of the U.S. Anticybersquatting Consumer Protection Act (ACPA), but the ACPA requires a “bad faith intent to profit,” not just “bad faith.” This potentially makes noncommercial websites more vulnerable under the UDRP.
In Arkow’s case, the UDRP decision-maker determined that he had a legitmate interest in using the “metrolinkriders.com” and “metrolinksucks.com” (registered after the SCRRA threatened litigation) domain names for purposes of commentary and criticism. The opinion gave weight to the fact that Arkow was not a competitor of the SCRRA, that his site was noncommercial (i.e., it had no advertising), and that the dispute involved parties from the U.S. where “judicial decisions tend to support criticism websites against trademark infringement and cybersquatting claims on constitutional First Amendment grounds.” For similar reasons, the decision-maker concluded that Arkow did not register the domain name in bad faith, noting in addition that he had refused the SCRRA’s offer to purchase the domain name from him and that he included disclaimers on the website making clear that it was not official. It concluded that “something more than criticism is required to establish illegitimacy and bad-faith for purposes of the UDRP.”
- > UDRP site
The design style of ICANN is truly, hem, Web 1.0…
Here’s a very interesting post from Auren Hoffman from the Summation blog. I’d posted about the differences betwen men and women social networking here, with a slightly different angle, but the idea is the same: ‘ Women want relationships, men want action, excitment, and… tangible results. 
The gender gap on social media is growing
It’s no shock either that men and women act very different online. The web is an extremely social medium, with Web 2.0 being all about social. Men traditionally are early adopters, especially when it comes to tech, but when it comes to social media, women are at the forefront.
At Rapleaf we conducted a study of 13.2 million people and how they are using social media. While the trends among the sexes indicate they are both massively using social media, women are far outpacing men - here is our hypothesis as to why:
Just the facts, madam
For those under 30, women and men are just as likely to be members of social networks. Sites like Facebook, MySpace, and Flixster are extraordinarily popular. But we found that young women are much more active on these sites then young men. And for people above 30, men - especially married men - aren’t even joining social networks. With the notable exception of LinkedIn usage and VCs in the Bay Area friending everyone on Facebook, married men are not hanging out on social networks. Married women, however, are joining social networks in droves. In fact, women between the ages 35-50 are the fastest growing segment on social networks, especially on MySpace.
Looking further into this trend, we believe that young men spend as much time (and sometimes more) in front of a computer than young women. And they have just as much free time, if not more. But the competition for their computer time comes from spending hours playing video games such as World of Warcraft and many first-person action games.
Many men who play casual games tend to like games like poker with betting involved. Since most social networks ban gambling, men find sites (most of them offshore) that allow them to wager when they play. Women on the other hand are large consumers of casual games and most social networks, especially those that are dominated by third party applications, are essentially big casual game networks. Women also spend much more time decorating their social network profile pages, making slide shows, and more. Popular sites such as Whateverlife.com exacerbate this effect by offering and catering MySpace layouts to young women.
So while young men and women are signing up for social networks at a similar rate, young women are “throwing more sheep” at people.
Now young men understand that they can’t spend ALL their time playing video games (though some do) as they still need to interact with the opposite sex. Sex is one of the strongest drivers of online usage and many men see social networks as a gateway to potentially filling that desire. Men, in general, tend to look at things more transactionally than women. Once men get married, they see increasingly less value in being on a social network. Which, of course, is why married men dominate LinkedIn - the most transactional social network (with the exception of AdultFriendFinder). LinkedIn is all about getting information and introductions now.
Women, on the other, hand are much more relationship-driven and less transactional than men. They spend more time on social networks building relationships, communicating with friends, making new friends, and more. Married women put up pictures of their immediate family on social networks and use their social network profile as a family home page to share with friends and relatives.
With all this happening, we’re witnessing a burgeoning gender gap.
Just take a look at RockYou and Slide , two dominant photo widget sites, These sites are very clearly targeting young women, down to the fact that they have traditional feminine colors (i.e. purple and pink), glitter text everywhere, and are almost exclusively decorated with pictures of women. They don’t even give men lip service on their site. Both companies do have a few niche Facebook applications that target men, but the fact these applications are hidden and often marketed under different brands proves that that women rule this space.
If you are creating a new Web 2.0 site and you want to go viral, you target women. Young women drive virality and so all the new innovation is targeted towards them. That means that the gender gap on social networks (and increasingly in all of social media) is only going to widen. More and more innovation will be targeted towards women and they will continue to get more engaged. And while we expect men’s adoption to social media to continue to increase, it will likely be slower than the rate of adoption by women.
- > Summation blog
This came up yesterday, from the IP justice organization in San Francisco. An interesting development related to domain nale purchasing, where the limited legal framework poses some real problems.
LOS ANGELES, Feb. 25 /PRNewswire/ — Network Solutions has forced
millions of people to buy Internet domain names from them instead of
cheaper competitors through a scheme that’s netted the firm millions
of dollars, a federal class action lawsuit filed today by Kabateck
Brown Kellner, LLP states. ICANN, whose policies facilitate the
scheme, is also named in the suit, filed in U.S. District Court,
Central District of California.
“Imagine if you asked a car dealer if they had a black convertible
and were then forced to buy the car from them. Would you get a good
deal? Each time someone asks Network Solutions about a domain name,
the firm creates a monopoly for itself, forcing consumers to pay the
price they demand,” said Brian Kabateck, lead counsel in the class
action and Kabateck Brown Kellner’s Managing Partner.
Whenever someone searches for the availability of a domain name
through Network Solutions’ website, the company immediately registers
the name for itself, preventing other companies from selling it and
forcing consumers to pay Network Solutions’ expensive fees.
If a consumer were to go to another, cheaper site to register the
name, they would find the name is “unavailable.” Consumers are never
informed that inquiring as to a name’s availability through Network
Solutions results in the company holding a monopoly on selling that
name.
This allows Network Solutions to continue charging substantially
higher prices for domain name registration. Network Solutions charged
$34.99 to register the name sought by this suit’s lead plaintiff. A
competitor would have charged $9.99.
Network Solutions’ scheme is made possible by ICANN. ICANN allows
companies that sell domain names to avoid paying registration fees
for names cancelled within five days. Thus, Network Solutions can
defraud customers at no cost to itself.
ICANN is aware that Network Solutions is abusing this policy and yet
continues to facilitate its actions.
ICANN is the international organization, headquartered in Marina Del
Rey, CA, that regulates domain names and other Internet protocols.
Kabateck Brown Kellner is one of the nation’s foremost consumer law
firms. Its clients have won more than $750 million against Google,
Yahoo!, Farmer’s Insurance, Eli Lilly and others. As a plaintiff’s-
only firm, Kabateck Brown Kellner is always on the consumers’ side.
IP JUSTICE
1192 Haight Street, San Francisco, CA 94117 USA
w: http://www.ipjustice.org