California Business and Professions Code 17526 – In determining whether there is a bad faith intent pursuant to …
In determining whether there is a bad faith intent pursuant to Section 17525, a court, consistent with 15 U.S.C. § 1125(d)(1)(B)(i) as that section read on January 1, 2019, may consider factors, including, but not limited to, the following:
(a) The trademark or other intellectual property rights of the person alleged to be in violation of this article, if any, in the domain name.
Terms Used In California Business and Professions Code 17526
- Domain name: means any alphanumeric designation that is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the internet. See California Business and Professions Code 17527
- person: includes any individual, partnership, firm, association, or corporation. See California Business and Professions Code 17506
- Subdivision: means a subdivision of the section in which that term occurs, unless some other section is expressly mentioned. See California Business and Professions Code 15
- Traffic in: refers to transactions that include, but are not limited to, sales, purchases, loans, pledges, licenses, exchanges of currency, or any other transfer for consideration or receipt in exchange for consideration. See California Business and Professions Code 17527
(b) The extent to which the domain name consists of the legal name of the person alleged to be in violation of this article or a name that is otherwise commonly used to identify that person.
(c) The prior use, if any, by the person alleged to be in violation of this article of the domain name in connection with the bona fide offering of any goods or services.
(d) The legitimate noncommercial or fair use of the name in an internet website accessible under the domain name by the person alleged to be in violation of this article.
(e) The intent of a person alleged to be in violation of this article to do either of the following:
(1) Divert consumers from the person’s or deceased personality’s online location to a site accessible under the domain name that could harm the goodwill represented by the person’s or deceased personality’s name either for commercial gain or with the intent to tarnish or disparage the person’s or deceased personality’s name by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site.
(2) Divert consumers from the online location of an entity described in paragraph (2) of subdivision (a) of Section 17525 to a site accessible under the domain name that could harm the goodwill represented by that entity’s name either for commercial gain or with the intent to tarnish or disparage the entity by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site.
(f) The offer by a person alleged to be in violation of this article to transfer, sell, or otherwise assign the domain name to the rightful owner or any third party for substantial consideration without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services.
(g) The intentional provision by the person alleged to be in violation of this article of material and misleading false contact information when applying for the registration of the domain name.
(h) The registration or acquisition by the person alleged to be in violation of this article of multiple domain names that are identical or confusingly similar to names described in subdivision (a) of Section 17525.
(i) Whether the person alleged to be in violation of this article sought or obtained consent from the rightful owner to register, traffic in, or use the domain name.
(j) The intent of a person alleged to be in violation of this article to mislead, deceive, or defraud users of the internet website, including consumers and voters.
(Amended by Stats. 2020, Ch. 162, Sec. 2. (SB 342) Effective January 1, 2021.)