30
Jul/02

Kiner's Corner on Metsonline.net


I became aware of a dispute regarding metsonline.net through Dave via Ernie.  Apparently, Major League Baseball has apparently sent a demand letter to a guy who is running a Mets fan site.  Ernie asked me for my two cents.

Just to qualify myself as an expert, I should point out that I grew up in Flushing, NY and was 8 years old when Ron Swoboda made The Catch. ;-)

First, as a general rule, while I enjoy a brawl as much as the next guy,  I hate to say who’s right and who’s wrong in an ongoing dispute because I know I don’t know everything I need to know in order to know who’s right and who’s wrong.

OK – in the portion of the demand letter posted on the site, MLB refers to the cyber-squatting clause of the Lanham Act.   When scoring this from home you have to remember that trademark infringement and cyber-squatting are two different causes of action under the Lanham Act with their own provisions, elements, penalities, etc.  The most important distinction (to me) is that cyber-squatting is an intentional tort and infringment is that scary animal – a strict liability tort.  A lot of media reporting of domain name disputes confuse the equities and arguments of one analysis with the other.

In the cyber-squatting analysis here, at least two points seem relevant to me.  The first is that there is a well-developed fan site at this URL.  If the registrant can document that he had intended a fan site from the beginning, then that will be a very relevant fact.  A bona fide fan site will likely be deemed to be a good faith reason for registering the name.  It is also relevant that this is 2002, not 1994.  Registering metsoline.net will not keep the Mets off the web.  But again, I don’t know enough to draw conclusions.

As for trademark infringement – remember, intent is not an element.  It is a mixed question of fact and law as to whether naming the site METSONLINE.NET is a confusing use.  It is or it isn’t. The fair use doctrine is too complex to get into but I will over-simplify it here to state: The site operator can reproduce the METS trademarks to truthfully describe the nature of his service, but not to suggest that the site is endorsed by the Mets, nor may he reproduce the METS trademarks more than what is needed to truthfully describe his service.   

As an aside, I am not much of a believer in the efficacy of disclaimers.  A better disclaimer would be re-naming the site “Bryan Hoch’s Mets Online Website.”

Finally, as a practice pointer for folk with clients in the sports and entertainment field, you have to be really careful how you deal with fans, because you never want to see your demand letters posted on a website. It would seem that getting the fan sites into a web ring (among other proactive behavior for encouraging fan input) could circumvent a lot of this agita.

 

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