Let's be clear, this is not a cybersquatting case. There is no registered domain name involved. This is a question of the agreement between Anthony and MySpace, and the potential duty of good faith negotiations and/or any estoppel interest Anthony may have gained against Obama. Those are fact intensive issues.
The situation would be more interesting legally in my view if it did involve a domain name. I think there are serious issues regarding the First Amendment and the manner in which the UDRP is applied when celebrities are involved. Here is a good article discussing the issue:
The Starr case is emblematic of how domain name disputes often are resolved: fast, relatively inexpensively and typically in favor of the celebrity. Under the Uniform Domain-Name Dispute Resolution Policy system set up in 1999 to combat cybersquatting -- the practice of registering an Internet address solely with the intent of selling it back to its rightful owner at a profit -- the arbitration panel charged only $2,250 for its services, a fraction of the $20,000 average cost of litigating a civil action in federal court. Starr was not entitled to damages, but he obtained his desired result without enduring months of litigation.
Four arbitration providers handle the vast majority of domain name dispute cases. And business is booming -- the number of filings for arbitration at the World Intellectual Property Organization has almost doubled since 2003, reaching 1,946 last year. Another provider, the National Arbitration Forum, handled 1,658 cases in 2006, the busiest filing year in its history. Cases usually are decided on briefs without any oral hearing and on average within 50 days or less.
But some argue that the efficiency of the uniform system comes at the expense of those who aren't household names. Bradley, like most domain name registrants in arbitration proceedings, was not represented by counsel and, according to some experts, had a slim chance of prevailing against a well-known figure in a fact-specific proceeding under what many believe is a vague standard of what constitutes improper use.
"Often the panelists will say, 'Well, they're a celebrity, no one can have a legitimate interest (in the name) for that reason,' " says Ari Goldberger, a Cherry Hill, N.J., attorney who has represented registrants.
One member of the Starr panel felt Bradley had not received a fair shake and dissented from the majority's findings.
"(E)ven though (Bradley) has not shown demonstrable preparations towards his fan site, he appears to have the right to lawfully launch a noncommercial fan site at the domain name ringostarr.mobi in the future," wrote David Bernstein, an arbitrator and attorney at Debevoise & Plimpton in New York. In 2000, the same neutral cleared a registrant to use the domain name edwardvanhalen.com for a fan site.
Michael Froomkin, a professor at the University of Miami School of Law and a former arbitrator, believes what happened to Bradley is an example of the system's "rough justice." "The problem is evidence," he says. "Trademark cases are as fact-intensive as anything. Facts require a trial. The UDRP was supposed to get (abusive registration) cases where the facts are slam-dunks."
If this were a case before a WIPO arbtiration panel, would Obama prevail? Should he? Anthony certainly put the url to use and it was non-commercial use. Was anyone confused? No reporting of such confusion.
I would say no. And yet, Anthony has lost his profile url. Rough justice indeed.
