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10 J. Int't Com. L. & Tech. 1 (2015)

handle is hein.journals/jcolate10 and id is 1 raw text is: JICLT Journal of International Commercial Law and Technology Vol. 10, No.1 (2015) Business Identity Theft under the UDRP and the ACPA: Is bad faith always bad for business advertising? Bukola Faturoti* Abstract: Websites have provided a very strong platform for businesses to reach their customers. They surpass the regular billboards by providing portals through which transactions are conducted without any physical contacts between a seller and a buyer. This usefulness underscores the importance of domain names through which websites are navigated. Cybersquatters have in bad faith targeted or hijacked domain names of famous and reputable businesses exploiting the goodwill of these names and misleading customers and other internet users. This paper explores the construction of bad faith under both the Uniform Dispute Resolution Policy and the US Anticybersquatting Consumer Protection Act. The paper argues that, despite some inconsistencies, bad faith elements have been broadly interpreted to embrace various activities of cybersquatters. It cautions that an overzealous application of the instruments may stifle freedom of speech. 1. Introduction Since the commercialization of the internet, websites have assumed the role of billboards as a medium through which commercial ventures, from large to small scale, use in signposting their products, contacts, as well as their standard operating procedures, to the general public. In comparison however, a website is a more powerful marketing tool than the traditional billboard. Whilst traditional billboards merely provide basic information about businesses, are stationary, the websites do provide 'on-the-spot' transactional and communication facilities such as mailing tools, links to specific information, and other flexibilities, websites provide a wider range of flexibilities as transactions can be initiated, facilitated, and completed using its tools without physical contacts between the seller and the buyer. Private individuals have also used websites to promote their images and disseminate autobiographical information. The gateway to companies or individuals' websites is a unique Universal Resource Locator (URL). A URL identifies the physical location of a website in the internet's infrastructure. A core element of a URL is a domain name. Domain names consist of the words and characters that websites owners designate for their registered internet addresses. Domain names are corporate assets. Businesses do not string random words to generate their URLs. Some business owners use business names or certain combinations of words which are already known to their customers.' In other words, businesses, institutions, and individuals use domain names to identify themselves since they are easy to remember and create and easily attract consumers to their website. Markedly, domain names have the semblance of trade marks in real world. However, there is a fundamental difference. While a trademark identifies the source of goods in commerce, a domain name does not generally appear on goods as an indication of source.2 While domain name of a business carries the goodwill of the business, it is susceptible to theft, and this means theft of the companies identity or goodwill. Theft of goodwill can occur whereby a person exploits the goodwill of another by deceiving or confusing unsuspecting internet users into believing that the business concerned actually belong to him. The unauthorised exploitation of famous and distinctive domain names is regarded as bad faith in trademark and cybersquatting disputes. Both the Uniform Dispute Resolution Policy (UDRP) and the US Anti-cybersquatting Consumer Protection Act (ACPA) *Senior Lecturer. The author is gratefully thankful to Prof. Ken Mackinnon, Dr. Olasupo Owoeye, Ernest Enobun and Dolapo Tade for their comments and invaluable feedbacks. Any other errors remain mine. I Frederick M. Abbott 'On the Duality of Internet Domain Names: Propertization And Its Discontents (2013) 3 NYU J. Intell Prop. & Ent. L. 1- 52. 2 WIPO, The Management of Internet Names and Addresses: Intellectual Property Issues, Report of the WIPO Internet Domain Name Process WIPO Pub. No.439 at paras. 163 -77.

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