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Safe Harbor for Service Providers under the Anticybersquatting Act

By Gerald M. Levine

GoDaddy.com, which is the largest registrar in the United States with more than 60 million domain names under management, has been the prevailing defendant in two major lawsuits under the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. '1125(d) Cyberpiracy Prevention. See, Petroliam Nasional Berhad, 737 F.3d 546 (9th Cir. 2013), and Academy of Motion Picture Arts & Sciences (AMPAS), CV 10-03738 (C.D.Ca. Sept. 10, 2015), decided on Sept. 10 of this year after a bench trial a month earlier. In both cases, plaintiffs sought to hold a defendant liable for contributory or secondary infringement rather than “direct” cybersquatting under the ACPA. Although the factual circumstances underlying the claims are different, the principal reason for plaintiffs' lack of success lies in a fundamental misunderstanding of the ACPA.

The ACPA was Congress' statutory response to the scourge of registering, trafficking in, or using domain names with the bad faith intent of profiting from marks. See, 15 U.S.C. '1125(d)(1)(A)(i and ii). While the ACPA is part of the Trademark Act of 1946 (the Lanham Act), 15 U.S.C. ”1051-1129, cybersquatting ' or cyber piracy as the statute is denominated ' is not a traditional trademark infringement but a statutory violation of another kind. The intent necessary to prove trademark infringement and cybersquatting is measured by entirely different standards.

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