Cyber Piracy - Advertising - Business & Professions - CA

Section § 17525

This law makes it illegal to register, sell, or use a domain name on the internet that is intentionally similar to someone else's personal name or the name of a sports team, event, or venue, unless you have permission or it's related to a creative work. If a person does this without permission, they are assumed to have bad intentions. Exceptions include using the name for creative works or when you have consent. Domain registrars who act according to this law are not liable, even if the domain is disputed later. People who are harmed financially by such actions can sue for damages and attorney’s fees. The law also explains that goods can be tickets or merchandise like clothing and memorabilia associated with events or entities.

(a) It is unlawful for a person, with a bad faith intent, to register, traffic in, or use a domain or subdomain name that is identical or confusingly similar to, because of, among other things, misspelling of the domain or subdomain name, either of the following:

(1) The personal name of another living person or deceased personality, without regard to the goods or services of the parties.

(2) The name of any of the following used to sell or resell, or offer to sell or resell, goods:

(A) A specific professional or collegiate sports team, professional or collegiate sports league, theme or amusement park, or venue where concerts, sports, or other live entertainment events are held.

(B) A specific event, performance, or exhibition, including the name of a person, professional or collegiate team, performance, group, or entity scheduled to perform or appear at that event.

(b) This section does not apply in the case of a name registered as a domain name or subdomain name in either of the following circumstances:

(1) The personal name described in paragraph (1) of subdivision (a) is connected to a work of authorship, including, but not limited to, fictional or nonfictional entertainment, and dramatic, literary, audiovisual, or musical works.

(2) The person whose personal name is described in paragraph (1) of subdivision (a) or the authorized agent of an entity whose name is described by paragraph (2) of subdivision (a) consents to the registration, trafficking, or use of the name as a domain or subdomain name.

(c) A domain name registrar, a domain name registry, or any other domain name registration authority that takes any action described in subdivision (a) that affects a domain name shall not be liable to any person for that action, regardless of whether the domain name is finally determined to infringe or dilute a trademark or service mark.

(d) A party who has suffered injury in fact and has lost money or property as a result of a violation of this section may bring a civil action for recovery of actual, consequential, and punitive damages, if warranted, and shall be awarded reasonable attorney’s fees if the action is resolved in that party’s favor.

(e) For purposes of this section, “goods” includes tickets to a concert, sporting event, or other live entertainment event. “Goods” also includes clothing and memorabilia bearing the name or trademark of an entity described in paragraph (2) of subdivision (a).

(f) A person who registers, traffics in, or uses a domain or subdomain name in violation of paragraph (1) or (2) of subdivision (a) without the consent described in paragraph (2) of subdivision (b) is presumed to have done so with a bad faith intent. This presumption is a presumption affecting the burden of proof.

(g) The remedies provided by this section are cumulative and shall not be construed as restricting a remedy that is otherwise available, including, but not limited to, a remedy available under Chapter 2 (commencing with Section 14200) of Division 6, or Chapter 4 (commencing with Section 17000) of Part 2 of Division 7.

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Section § 17526

This section helps courts decide if someone is acting in bad faith when using a domain name. It outlines factors the court can consider such as: if the domain name misuses someone’s trademark, if it uses a legal name, if there was previous legitimate use of the domain name, or if it’s used for noncommercial purposes. It also looks at whether the domain diverts people to a harmful site, if it’s offered for sale in bad faith, if false contact details were provided, or if multiple similar domain names were registered. It checks for consent from the trademark owner and whether there's an intent to deceive internet users.

In determining whether there is a bad faith intent pursuant to Section 17525, a court, consistent with 15 U.S.C. Sec. 1125(d)(1)(B)(i) as that section read on January 1, 2019, may consider factors, including, but not limited to, the following:

(a) The trademark or other intellectual property rights of the person alleged to be in violation of this article, if any, in the domain name.

(b) The extent to which the domain name consists of the legal name of the person alleged to be in violation of this article or a name that is otherwise commonly used to identify that person.

(c) The prior use, if any, by the person alleged to be in violation of this article of the domain name in connection with the bona fide offering of any goods or services.

(d) The legitimate noncommercial or fair use of the name in an internet website accessible under the domain name by the person alleged to be in violation of this article.

(e) The intent of a person alleged to be in violation of this article to do either of the following:

(1) Divert consumers from the person’s or deceased personality’s online location to a site accessible under the domain name that could harm the goodwill represented by the person’s or deceased personality’s name either for commercial gain or with the intent to tarnish or disparage the person’s or deceased personality’s name by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site.

(2) Divert consumers from the online location of an entity described in paragraph (2) of subdivision (a) of Section 17525 to a site accessible under the domain name that could harm the goodwill represented by that entity’s name either for commercial gain or with the intent to tarnish or disparage the entity by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site.

(f) The offer by a person alleged to be in violation of this article to transfer, sell, or otherwise assign the domain name to the rightful owner or any third party for substantial consideration without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services.

(g) The intentional provision by the person alleged to be in violation of this article of material and misleading false contact information when applying for the registration of the domain name.

(h) The registration or acquisition by the person alleged to be in violation of this article of multiple domain names that are identical or confusingly similar to names described in subdivision (a) of Section 17525.

(i) Whether the person alleged to be in violation of this article sought or obtained consent from the rightful owner to register, traffic in, or use the domain name.

(j) The intent of a person alleged to be in violation of this article to mislead, deceive, or defraud users of the internet website, including consumers and voters.

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Section § 17527

This law section defines several important terms used in the context of business and professions. It explains that a 'deceased personality' is defined like in another law, and a 'domain name' is any unique internet address registered through official means. 'Internet' means as defined elsewhere, likely referring to the global network, and 'traffic in' refers to any kind of transaction involving exchange or transfer for payment or remuneration.

As used in this article:

(a) “Deceased personality” shall have the same meaning as defined in Section 3344.1 of the Civil Code.

(b) “Domain name” means any alphanumeric designation that is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the internet.

(c) “Internet” shall have the meaning specified in Section 17538.

(d) “Traffic in” refers to transactions that include, but are not limited to, sales, purchases, loans, pledges, licenses, exchanges of currency, or any other transfer for consideration or receipt in exchange for consideration.

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Section § 17528

This law section states that any legal actions that arise under this article must follow the rules for court jurisdiction as outlined in another legal provision, specifically Section 410.10 of the Code of Civil Procedure.

Jurisdiction for actions brought pursuant to this article shall be in accordance with Section 410.10 of the Code of Civil Procedure.

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Section § 17528.5

If someone breaks this law, the court can require that a domain name be transferred as part of the punishment or remedy. This is an extra option the court has beyond other typical consequences.

In addition to any other remedies available under law, a court may order the transfer of a domain name as part of the relief awarded for a violation of this article.

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