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Another major topic of discussion is 'cybersquatting' which occurs when an outside party registers another's trademark in its own domain name. Many cases have risen from cybersquatting, and they have been treated as traditional misappropriation cases by the courts. Nowadays, The Internet Corporation for Assigned Names and Numbers (ICANN) , has stepped in and prohibited cybersquatting along with federal law through the Anticybersquatting Consumer Protection Act of 1999 . ICANN is a nonprofit organization dedicated to regulating these specific types of trademark issues, and although it has no official jurisdiction like a court, it has had a large influence on trademark law. ICANN has built a system of rules which are enforced through the Uniform Dispute Resolution Procedures (UDRP).
But situations do arise where two separate owners may have legitimate claims to the same trademark. This is actually quite common and is in line with trademark law, as long as customers do not get confused. A common example is companies working in separate industries, as they can use similar trademarks for completely separate things (a 'leaf' on a computer monitor and a the same 'leaf' on construction equipment). But now with the internet, both companies may want to claim the same domain name. What do we do now?
Originally the domain name registration system has worked on a 'first come first serve' basis. But this has caused some undesired consequences, as now companies feel the need to register everything similar to their trademark, in effect registering domain names in defense. ICANN has created additional top-level domains (TLDs) in order to address the problem, so that now www.computer.com and www.computer.info can have two separate owners. But again, companies just registered along every single top domain, as the first come first served basis was still employed. Other ideas have also been tried such as country TLDs (.uk, .tw), but there still has been no truly effective solution. How should this problem be addressed in order to balance both trademark rights and rights to free enterprise?
Another area where disputes can arise is in hyperlinks between web pages. What should Coca Cola do if I get a link labeled "Coca Cola" on some shopping website, but it actually links to my page, which sells drinks but not Coca Cola? Unfortunately, one can easily see how difficult it is to regulate hypertext links on the internet, since there is a virtually unlimited of hypertext links floating around. But there could be specific situations where the plaintiff shows that there is trademark infringement and the plaintiff thinks the economic compensation would be worthwhile. But as for now this is a problem without any practical solution.
Online search engines have also brought up issues having to do with trademarks. For example, one may have a website that sells electronics, but then to attract more attention from a search engine, it may say "Sony" 50,000 times at the bottom of its website so that it comes up higher for search engine results. In fact, an automated ranking system may even select this site above Sony's real website simply because it seems like there is such a strong relationship with this website and 'Sony'.
The courts have said that when the metatags being abused are trademarks by other parties, this can be considered misappropriation. We see this in Playboy Enterprises v. Calvin Designer Label. There is an added likeliness that liability will result when the opposing sides are in direct competition, as seen in Insituform Technologies v. National Envirotech Group.
Another situation that has risen comes from how the search engines themselves do business. Search engines often sell advertising rights to common search terms, so that advertisers can target their advertisements better. But then what happens if the purchased terms are trademarks of other companies? This has also been brought up trademark claims successfully, as it can fairly easily be seen as trademark infringement.
Source: Matsuura, Jeffrey H. Managing Intellectual Assets in the Digital Age. Norwood, MA : Artech House 2003
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