Thursday, March 05, 2009

Ken Runion, Domain Names, Cybersquatting, and the Law

It has come to my attention that a lot of people are unfamiliar with the law regarding domain names, cybersquatting, and the law. I researched the topic and will discuss it below. Keep in mind that the law may change. This is as of March 2009.

First how it came to my attention. I'm active in politics and that unfortunately leads to finding political opponents. Since I started serving on the Guilderland Town Board, the lead opponent has become crystal clear. His name is Ken Runion.

I felt strongly that people did not have the full story about Mr. Runion, so I registered kenrunion.com - that's a domain name for those who are unfamiliar with the term. I created a website at that address for the purpose of showing some of the things that are obvious but not portrayed accurately in the mainstream media.

This is hardly the first time a candidate used another candidate's name in a domain name. Just last year during the Democratic primary, the Tracey Brooks campaign registered several domain names using the name of Phil Steck, an opponent.

It turns out, not surprisingly, that some people don't like others using their name in a domain name. Mr. Runion and company even seem to think it's illegal. Well it's not. I was discussing this with a friend who decided after the conversation that it was time to review their own websites, and I figured others might want to know more.

For starters there's that darn First Amendment again. It's free speech. I have important facts I want to say about Ken Runion and using kenrunion.com is a very effective way of delivering those facts.

But there are laws that protect people, and businesses, from cybersquatting. In short, the term refers to registering a domain name for the purpose of reselling it. That's too simplistic, but it's not that far off. For a more complete discussion of that term, see Wikipedia on cybersquatting.

The main federal law on this is the Anticybersquatting Consumer Protection Act, which is within Title 15 of the US Code at Section 1125(d). If you're doing it with a "bad faith intent to profit", then that is in the ballpark of illegal. It's not a crime, but rather you can be sued. One key thing to be aware of is §1125(d)(1)(B)(i)(IV) -- and who says federal law is complicated?

If your use of the domain name is "bona fide noncommercial or fair use", that will help a lot. If you just put up a page that says "this site for sale", that suggests you're trying to profit off of it. But if you put up a page that talks about the named person, company or product, then you should be in better shape.

That was federal law. New York State also has a couple laws on this. It starts with Article 9-C of the General Business Law. Section 148(1) says:

No person or entity shall register a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person's or entity's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party.

There's some key language in there -- "with the specific intent to profit from such name by selling the domain name." If you didn't register the name for the purpose of selling it, your'e okay.

Another thing protecting those who register domain names from this New York Law comes in the next section, §149(4). It seems that the law only applies if the domain name registrar is in New York State. I don't think any of them are, so that may render the whole statute meaningless. Also, it doesn't appear to be a crime.

There's also § 133 of the General Business Law, titled "Use of name or address with intent to deceive." This one is a misdemeanor. Here, it seems to be limited to the use of a corporate or trade name. The statute is below. Comments appreciated.


§133: No person, firm or corporation shall, with intent to deceive or mislead the public, assume, adopt or use as, or as part of, a corporate, assumed or trade name, for advertising purposes or for the purposes of trade, or for any other purpose, any name, designation or style, or any symbol or simulation thereof, or a part of any name, designation or style, or any symbol or simulation thereof, which may deceive or mislead the public as to the identity of such person, firm or corporation or as to the connection of such person, firm or corporation with any other person, firm or corporation; nor shall any person, firm or corporation, with like intent, adopt or use as, or as part of, a corporate, assumed or trade name, for advertising purposes, or for the purposes of trade, or for any other purpose, any address or designation of location in the community which may deceive or mislead the public as to the true address or location of such person, firm or corporation. A violation of this section shall be a misdemeanor. Whenever there shall be an actual or threatened violation of this section, an application may be made to a court or justice having jurisdiction to issue an injunction, upon notice to the defendant of not less than five days, to enjoin and restrain such actual or threatened violation; and if it shall appear to the satisfaction of the court or justice that the defendant is in fact assuming, adopting or using such name, or is about to assume, adopt or use such name, and that the assumption, adoption or use of such name may deceive or mislead the public, an injunction may be issued by said court or justice, enjoining and restraining such actual or threatened violation without requiring proof that any person has in fact been deceived or misled thereby.
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