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D. Murali

...be it in the physical world or the virtual. Here's tracking a case in cyberspace.

YOU never expect Coke and Pepsi to be on the same side, but that's what happened when they had a common enemy in William S. Purdy, an abortion activist in the US. Purdy's pranks started in July 2002 when he registered Internet domain names such as drinkcoke.org, mycoca-cola.com, mymcdonalds.com, mypepsi.org, and my-washingtonpost.com.

Thus, the case that got decided early September at the US Court of Appeals for the Eighth Circuit had not only the cola majors but also the burger biggie McDonald's, and The Washington Post, all aligned against the domain squatter, Purdy. Earlier, the District Court of Minnesota had ruled against the offender by granting relief to the aggrieved companies, but Purdy continued to violate the court injunction. Therefore, the companies went on appeal, seeking remedy under the Anticybersquatting Consumer Protection Act (ACPA).

Purdy's modus operandi was to link the domain names to abortionismurder.com "which contains antiabortion commentary and graphic images of aborted and dismembered foetuses". It had a link `What Can I Do?' to lead visitors to purchase "hats, shirts, neckties, and licence plates with antiabortion themes and make donations using a credit card or bank account number".

The likeness to established brands didn't stop with domain names. Purdy even linked the domain names mywashingtonpost.com and drinkcoke.org to a site displaying "what appeared to be a front page originating from washingtonpost.com". With that format, Purdy's site had a headline "The Washington Post proclaims `Abortion is Murder'" and added "graphic images of aborted foetuses next to Coca-Cola's trademark", and words that read, "Things Don't Always Go Better With Coke. Abortion is Murder -- `The Real Thing.'"

Purdy registered domain names "at an exciting pace" and had "as many as 200" sites to "attract unwitting Internet users to his antiabortion message". When a counsel for the Post spoke to Purdy about the "counterfeit front page" of the newspaper, "Purdy offered to comply with the request of the Post entities if they would publish something written by him on The Washington Post editorial page, but they declined."

During the hearing, Purdy argued that his interest in free expression outweighed the trademark rights of companies, but they contended that Purdy had "ample channels for expression of his views without using confusing domain names". Another stand of Purdy was that an Internet user "would most likely use a search engine to find the correct corporate Web site or would guess that the domain name would be the company's name followed by .com," so there was no merit in saying that his domains were `confusingly similar'. But the companies produced "evidence of actual confusion among Internet users."

The court acknowledged the need to protect trademarks. It cited a 1946 quote to explain the purpose of ACPA: "Where the owner of a trade-mark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats." On the Net, such hijacking took the form of cybersquatting, defined as "registering or using with a bad faith intent to profit a domain name that is confusingly similar to a registered or unregistered mark or dilutive of a famous mark." `Bad faith intent' has "nine nonexclusive factors", and that's something for the law-enthusiasts to study.

The court observed that ACPA was born when it was found that cybersquatters were engaging in "consumer fraud and creating public confusion as to the true source or sponsorship of goods and services in a way that would impair electronic commerce, deprive trademark owners of substantial revenues and consumer goodwill, and place overwhelming burdens on trademark owners in protecting their valuable intellectual property". Thus, while intellectual property is valuable, it is also expensive to protect it.

Purdy argued that the First Amendment entitled him to attract Net users to sites "containing political expression and criticism" but the court asked if the protection extended to misleading use of established names "to attract an unwitting and possibly unwilling audience". Through an interesting analogy, the court explained that such a practice is "the information superhighway equivalent" of putting up "McDonald's logo before a freeway exit for the purpose of diverting unwitting travellers to the site of an antiabortion rally".

Purdy may not abort his attempts to fight further, and therefore the last word hasn't been said on the issue. For surfers, skill would lie in being able to distinguish legitimate road signs from placards held by squatters.

Picture by K. Pichumani

Cases@TheHindu.co.in

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