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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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National A-1 Advertising, Inc. and Lynn Haberstroh v. Network Solutions Inc., et al.

121 F. Supp. 2d 156 (D.N.H., September 28, 2000)

The court granted defendants' motion for summary judgment, and held that defendant Network Solutions Inc. ("NSI") did not violate plaintiffs' First Amendment rights by refusing, under its "decency policy," to register domain names that contained, in their second level domains, various sexually-oriented words and phrases.

Plaintiffs sought to register with NSI a variety of domain names that contained sexually-oriented phrases such as www.tits.com and www.feelmytits.com. At the time plaintiffs sought to register these domain names, NSI was the sole approved registrar of the gTLDs .com, .org .net and .edu. Applying its decency policy, NSI refused to register these domain names. Under this same policy, however, NSI would apparently register domain names containing the phrases in question provided they were in a third level domain, such as http:\\www.tits.photos.com. After the acts in question occurred, other domain name registrars were licensed who would register second level domain names containing the phrases at issue.

Plaintiffs commenced suit, arguing that NSI's conduct violated their rights to free speech under the First Amendment. Finding that plaintiffs' First Amendment rights were not violated, the Court dismissed the suit on defendants' motion for summary judgment.

The First Amendment only "proscribes governmental conduct, not conduct undertaken by private citizens." Accordingly, for the conduct of NSI to fall within its strictures, NSI must be deemed to be a "state actor" when engaging in such conduct. "[I]f [NSI] was not a state actor when it acted as registrar for second-level domain names, the First Amendment did not restrict it from imposing limits on the words or phrases that it would accept for registration." NSI is and has always been a private company. However, during the period of time in question, it operated its domain name registry pursuant to a Cooperative Agreement originally awarded to NSI by the National Science Foundation, the administration of which was ultimately transferred to the Department of Commerce.

According to the court:

A private entity will be deemed a state actor if (1) it assumes a traditional public function when it undertakes to perform the challenged conduct or (2) an elaborate financial or regulatory nexus ties the challenged conduct to the State or (3) a symbiotic relationship exists between the private entity and the State.

While it recognized that the question was "complex" and that "solid arguments" could be made on both sides, the court determined that NSI "was not a government actor when it denied plaintiffs' application for [registration of] second level domain names." In reaching this conclusion, the court relied heavily on its determination that the decision to adopt and implement a decency policy was NSI's alone, and not the result of action or direction by the National Science Foundation, or any other governmental agencies to which NSI reported.

The court further held that "even if [NSI] did qualify as a governmental actor, it did not violate plaintiffs' First Amendment rights ...".

To the extent communicative speech was implicated at all by NSI's actions, a conclusion the court was not willing to reach in this case (a domain name could well be seen instead as a source identifier), the appropriate speech to be considered was the entire domain name plaintiffs sought to register, and not just the second level domain name component thereof. Plaintiffs were free within the context of this space to convey the messages expressed in any of the sexually-oriented phrases at issue, provided they put such message in the third, and not second level domain name. A message so expressed would appear in the same locations (search engine results, web browsers, etc.) as the one they sought to communicate and often be accompanied by web pages containing any other message plaintiffs wished to communicate, unfettered by NSI. As such, the court determined that "plaintiffs' speech has not been suppressed or inhibited in any constitutionally significant way by the complained-of conduct or NSI or NSF." The court accordingly dismissed plaintiffs' complaint.

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