A lot has been written lately about the Cameroon govt. deal for domain names. If you aren't up on things, one individual has locked up a contract having all domain names not purchased (.cm names) point to a fairly typical PPC parking page. So, when someone accidentally misspells a domain name they are directed to a page with advertising for competitor ads. It is reported that such use gets around the domain name rules since the owner of the page does not take ownership of the domain name and there is not much that can be done. I dare say, however, that if an online retailer licensed the use of a competitor's domain name, a trademark infringement action would be coming. And I can envision other claims that could be asserted under various state unfair trade practice statutes.
It brings home one important point. You can't beat the experience of litigators and trial lawyers to maneuver through some of the complex legal issues of today. There are not cases to look up on the point, you cannot go to a treatise or a law review article to "get the answer", and the only solution is often resorting to good old brain power coupled with experience and high quality analysis.
Here is what I would do if a client's name was being used in this situation. I would contact the owner, explain that we intend to bring a trademark infringement and unfair competition lawsuit, and in the alternative propose a confidential settlement agreement in which he would turn the name over to our client. I bet you we would get it. Maybe because the owner would go to our website and realize that we are trial lawyers, have no problem pulling the trigger, and envision a tidal wave of litigation that would ensue when we issue our press release. No telling how many cases we have settled because the other side knows we are serious. I recall one extremely large domain name owner telling us, through legal counsel, that instead of filing a UDRP complaint just call them next time and they would transfer the domain name to us.
So, next time you read or hear about an analysis of a legal issue, keep in mind that there are often approaches that are available that will get the intended results, even when it looks like the law may be against you.
