Showing posts with label nominative fair use. Show all posts
Showing posts with label nominative fair use. Show all posts

Tuesday, July 31, 2012

Panel Rules Domain Name May Stay with Democrats

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A three member Uniform Domain Name Dispute Resolution ("UDRP") panel refused to transfer the domain name to Jack Abramoff after he filed a complaint.

Abramoff was involved in a corruption scandal that led to his conviction and to 21 persons either pleading guilty or being found guilty, including former White House officials J. Steven Griles and David Safavian, Representative Bob Ney, and nine other lobbyists and Congressional aides.

The domain name is currently registered by the Democratic Congressional Campaign Committee (DCCC) who has been using it for less than flattering purposes.

The panel found that Abramoff did not prove by a preponderance of relevant, credible, admissible evidence that the domain name is identical or confusingly similar to a trademark in which he has trademark rights.

Further, the Panel found that Abramoff “has not met his burden to prove by a preponderance of the relevant, admissible evidence that Respondent’s domain name has been registered and is being used in bad faith.”

Part of Abramoff's legal problem was that, aside from it being his name, the Panel found that he provided "no evidence of actual use of JACK ABRAMOFF as a trademark in connection with particular goods or services prior to the time 
Respondent registered the disputed domain name."

The Panel noted that “[o]ne cannot claim or enforce trademark rights in a mark that it has not used, and one cannot secure a U.S. Federal Trademark Registration absent “use in commerce.”

The Panel also found that the Respondent has rights or legitimate interests in the domain name because it has made a legitimate noncommercial or fair use pursuant to the Policy.
The Panel further noted that the use being made on the domain name is classic political speech, protected by the First Amendment, and, for trademark purposes constitutes nominative fair use.

Further, Abramoff had claimed to be “famous,” but the Panel found that the record reflects he is, in fact, “infamous."

Battlefield 3 Video Game May Be Too Close to Reality, Judge Rules

A federal judge has denied Electronic Arts' motion to dismiss a trademark infringement lawsuit involving true to life helicopters featured in its popular video game, "Battlefield 3."

The popular videogame -- which Electronic Arts sold 5 million copies of in its first week on the market -- accurately depicts the AH-1Z, UH-1Y and V-22 helicopters, manufactured by Textron Innovations and Bell Helicopter Textron.

Battlefield 3 features modern-day armed conflict role playing on land, air and at sea.  Game characters use genuine U.S. military weapons and vehicles, ranging from tanks and jeeps to planes and helicopters.

Textron and Bell had alleged in their Complaint that consumers are likely to view the images of its helicopters in the game and infer that the manufacturers endorsed or sponsored the game, when they did not.

Electronic Arts moved to dismiss the Complaint on the theory that it was merely engaging in nominative fair use when depicting the helicopters, and that such expression is protected by the First Amendment.

The Court disagreed, finding that "[a]lthough consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is 'somehow behind' or 'sponsors' 'Battlefield 3.'"

The same parties had previously clashed over Electronic Arts' depictions of Bell-manufactured vehicles in the "Battlefield Vietnam," "Battlefield Vietnam: Redux" and "Battlefield 2" video games, but the parties had previously reached a confidential settlement agreement over those uses.

The recent ruling invites a host of interesting questions about the accurate depiction of items in everyday life in video games and in other expressive media. 

For example, if a movie director desires to present a true to life war scene showing the use of an AK-47 assault rifle, does that depiction entitle the gun maker to sue? Judge Alsup's opinion suggests that such an outcome is possible.

"It is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters," Judge Alsop wrote.