It wasn’t your cache files — if indeed anyone checks in here regularly (traffic logs say they do) — nor, unfortunately, a trial. We’ve been gone for a while because of a death in the family. Now we’re back.
Here are some trademark-related and other topical links to think about while we get back up to speed:
UPDATE: Another interesting review at Blawgreview.com.
Plaintiffs, who had previously licensed their trademark to defendants in return for the payment of a 5% royalty rate, filed suit in federal court alleging, among other things, violation of the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. 1125(d). Defendants moved to dismiss for lack of subject matter jurisdiction, and the court granted the motion. It found that the case presented merely “a state law contract dispute, not one involving substantive questions of federal law.”
The court ruled that the only dispute between the parties was over the nonpayment of the agreed-upon royalty. Because defendants had been authorized to use plaintiffs’ trademark, the court held, there could be no bad faith intent to profit from the mark. Accordingly, without a valid claim under the ACPA, there was no federal question, and the court was without subject matter jurisdiction.
Reasonable minds may differ as to whether this holding was correct. Doesn’t it seem that if the royalties weren’t being paid, then the use of the trademark was not, as the court concluded, authorized? In other words, wasn’t payment of royalties a necessary condition of authorization? To bring it under the language of the ACPA, doesn’t it seem like continuing to use a trademark as a domain name without paying for it would be in bad faith?