Is a Hug Evidence of Bad Faith?

The Associated Press carried a recent cybersquatting article with a title that tells the whole story: Woman willing to give up Yao Ming’ domain address – for a price. The young Chinese woman’s price is “a hug and an autograph.” She says she registered the domain from China Internet Network Information Center (CNNIC) to protect it from “those who want to take advantage.” CNNIC said it would cancel the registration if Yao could prove he suffered economic harm.

If Yao Ming cares to assert his right to the name, he is entitled to get it back only if he has a case under ICANN’s Uniform Domain Name Dispute Resolution Policy. The UDRP applies to all domain name registrars. CNNIC cannot arbitrarily decide to give the domain name to Yao just on a showing of economic harm unless he can prove the other elements of a valid UDRP cybersquatting claim. The facts satisfy the first two prongs of the UDRP test: the domain name is identical or confusingly similar to a mark in which he has rights and the registrant does not appear to have any rights or legitimate interests in the domain name. Whether the young woman’s registration and use is in bad faith is more problematic. It would be bad faith if her price were $10,000 and four court side Houston Rockets season tickets but a hug and autograph, a devoted fan’s sweet payback, are harder to characterize as “bad faith.” Still, one could construe any condition imposed on release of the name to be “selling the name at a profit” to the mark owner, which is enough to prove bad faith under the UDRP.

This is how the world looks when I’m preparing the coming semester’s courses.

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