UDRP complaints involving personal names are tricky, especially if the complainant or respondent holds a trademark for the name in question. A German lawyer learned this firsthand when he filed a UDRP complaint against a respondent called Eighty Business Names with the World Intellectual Property Organization (WIPO) over the domain name Lambsdorff.com.
Konstantin Graf Lambsdorff, a Berlin-based attorney who has practiced law for 20 years, owns a German trademark for the word LAMBSDORFF, registered in September 2012. He states that this mark entitles him to the domain name which, at the time of filing, redirected to a third-party website selling various goods and services apparently unrelated to the Respondent. The Cayman Islands-based Respondent did not reply to the Complainant's contentions.
Without a response from Eighty Business Names, the UDRP categorized the case as a default. In such cases, the Panelist must draw conclusions from the information at hand, and a victory for the Complainant is not assured. In this case, the Panelist found that the disputed domain name was identical or confusingly similar to the Complainant's established mark, but he could not prove that the Respondent registered the domain name in bad faith.
The domain name was registered in 2004, a full eight years before the Complainant obtained his trademark. The Panelist found no evidence that the Respondent knew of the Complainant at the time of registration, and although the redirects showed "some evidence of bad faith use," he found "no evidence of bad faith registration” and ultimately decided that Lambsdorff.com would remain with the Respondent.
UDRP disputes involving personal names are always difficult, especially because it is difficult for the Complainant in this case, not an internationally recognized celebrity, to prove common law rights to a certain name. The trademark filing helped in one part of the case, but it ultimately couldn't completely satisfy the Panelist. Any individual looking to establish a presence on the Internet should register relevant domain names proactively to avoid having to file a UDRP complaint.
Google is taking a big step towards combating online piracy, announcing a change in its search algorithm that will favor legally downloadable content over pirated materials. The search engine will begin taking into account the number of valid copyright removal notices when determining the rank of pages in a specific search, thereby theoretically pushing sites that receive the most notices to the bottom of the heap. This announcement will certainly come as good news to groups like the Motion Picture Association of America, the Recording Industry Association of America, and other major entertainment industry groups and lobbying firms, some of whom have criticized Google for not taking a stand against copyright violators. This new aspect of the search engine's algorithm joins the nearly 200 other factors that Google already uses in determining the results and order of search queries.
Although the update is not scheduled to take effect until later this week, it raises a number of immediate questions for brand owners. Will this new element of the algorithm only account for Digital Millennium Copyright Act (DMCA) notices filed through Google, or is Google able to determine how many notices are filed directly with individual websites? Will this new element cause major media sites like YouTube — which is owned by Google — to get lower search rankings due to the sheer number of DMCA notices filed every day, or will other elements be sufficient to maintain high rankings? Will this element look at all filed notices or only successful ones? This question is especially pertinent for sites like YouTube, because it is possible for a website to defend a DMCA notice, and it would seem unfair to count notices that have been successfully defended.
The announcement also brings up certain ethical issues in regards to competition. Will companies start cluster bombing Google with questionable DMCA notices for their competitors' sites just to activate this element of the algorithm and game the system? Would a site owner have a potential legal claim against Google if it diligently takes down noticed content, or successfully defends many notices, or reports a competitor for notice–bombing yet still gets a lower ranking? How Google handles these issues might not be immediately apparent, but they are important questions going forward.
Of course, we won't know the answer to any of these questions until the new algorithm is in place, and even then, it will probably require some tweaking to produce the exact results it should. Regardless, it should be a boon for brand owners and corporations looking to protect their content, as their authentic material should rise to the top of the long list of search results.