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November 3, 2010 / Nate Harris

Tradewind Media, LLC v. Hahn

Summary of Tradewind Media, LLC d/b/a Intopic Media v. Jayson Hahn
(WIPO Case No. D2010-1413)

Filed: August 20, 2010; Decided: October 27, 2010 (Panelist: Mark Partridge)

Disputed domain name: <intopicmedia.org>

intopicmedia.org

The Parties

Complainant Tradewind Media, LLC d/b/a Intopic Media (“Intopic”) provides marketing and advertising services. On July 21, 2008, it registered the domain names <intopicmedia.com> and <intopicmedia.net>. On July 19, 2010, Intopic applied to register the mark INTOPIC, alleging a first use date as early as June 25, 2008 and a first use in commerce date as early as January 1, 2010.

Respondent Jayson Hahn (who didn’t respond to the complaint) registered the disputed domain on May 18, 2010. Though the disputed domain now points to a site that claims to be in “Maintenance Mode,” it previously pointed to a blog featuring posts with titles such as “Alert: Intopic Media owner is a thief,” “Intopic Fail,” and “An Advertising Company That Can’t Advertise.”

Identity or Confusing Similarity

The disputed domain name consists of Intopic’s INTOPIC mark along with the term “media,” which is descriptive of Intopic’s services. Therefore, the Panel finds the disputed domain name is confusingly similar to the INTOPIC mark.

Rights or Legitimate Interests

The Panel notes that “[i]t appears there has been some prior dispute Complainant and Respondent which was never brought to the attention of the Panel in the Complaint. In any event, it appears that Respondent used the disputed domain name for legitimate criticism of Complainant.” The disputed domain did not contain advertising links, and Mr. Hahn did not appear to commercially gain from the site. The Panel further notes:

The Policy is designed to prevent abusive cybersquatting, but under United States law, it cannot extend to insulating trademark holders from contrary and critical views when such views are legitimately expressed without an intention for commercial gain. That is true even if the critical views are unfair, overstated, or flat-out lies, (emphasis added) and even if they are posted at trademark.TLD websites. Use of the Policy to provide such insulation may undermine freedom of discourse on the Internet and undercut the free and orderly exchange of ideas that the First Amendment seeks to promote.

For these reasons, Intopic has failed to establish that Mr. Hahn lacks rights or legitimate interests in the disputed domain.

Bad Faith

The Panel dismisses Intopic’s “bald allegations” of bad faith, finding the site was used for bona fide noncommercial criticism.

Decision

The complaint is denied.

Commentary

In my analysis of HBT Investments v. Bussing, I asked whether it mattered if a criticism site is run by a competitor of the complainant or not. A few thoughtful commentors argued that it did matter. In that case, the respondent ran a “sucks” site about the complainant that was, arguably, more cogent than the respondent’s site here. Nonetheless, in that case, the Panel found that the site was being maintained for commercial gain (even though there were apparently no references to or  links to the respondent’s business). Here, on the other hand, and just as those commentors predicted, the Panel finds that the site is a bona fide non-commercial criticism protected by the First Amendment. For what it’s worth, I still don’t agree with the idea that the First Amendment focuses on the relationship between the parties, rather than the content of the message.

Epilogue

<intopicmedia.org> is still in “Maintenance Mode.”

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