美國反域名搶注消費(fèi)者保護(hù)法英文

1、TITLE III-TRADEMARK CYBERPIRACY PREVENTIONEnacted on November 29, 1999SEC. 3001. SHORT TITLE; REFERENCES (a) SHORT TITLE- This title may be cited as the Anticybersquatting Consumer Protection Act'. (b) REFERENCES TO THE TRADEMARK ACT OF 1946- Any reference in this title to the Trademar

2、k Act of 1946 shall be a reference to the Act entitled An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes', approved July 5, 1946 (15 U.S.C.1051 et seq.). SEC. 3002. C

3、YBERPIRACY PREVENTION. (a) IN GENERAL- Section 43 of the Trademark Act of 1946 (15 U.S.C. 1125) is amended by inserting at the end the following: (d) (1) (A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under

4、 this section, if, withou tregard to the goods or services of the parties, that person- (i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and (ii) registers, traffics in, or uses a domain name that- (I) in the ca

5、se of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similarto that mark; (II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or&

6、#160;(III) is a trademark, word, or name protected by reason of section 706 of title 18, United States Code, or section 220506 of title 36, United States Code. (B) (i) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as,

7、but not limited to-(I) the trademark or other intellectual property rights of the person, if any, in the domain name; (II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person; (III) the person's

8、prior use, if any, of the domain name in connection with the bona fide offering of any goods or services; (IV) the person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name; (V) the person's intent to divert consumers from the mark owner

9、9;s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the

10、 site; (VI) the person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person's prior conduc

11、t indicating a pattern of such conduct; (VII) the person's provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person's prior conduct i

12、ndicating a pattern of such conduct; (VIII) the person's registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of

13、others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and (IX) the extent to which the mark incorporated in the person's domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1)

14、 of section 43.(ii) Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful. (C) In any civil action involving the

15、registration, trafficking, or use of a domain name under this paragraph, a court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark. (D) A person shall be liable for using a domain name under subparagraph (A) only if that pers

16、on is the domain name registrant or that registrant's authorized licensee. (E) As used in this paragraph, the term traffics in' refers to transactions that include, but are not limited to, sales, purchases, loans, pledges, licenses, exchanges of currency, and any other transfer for cons

17、ideration or receipt in exchange for consideration.(d) (2) (A) The owner of a mark may in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is locat

18、ed if- (i) the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office, or protected under subsection (a) or (c); and (ii) the court finds that the owner- (I) is not able to obtain in personam jurisdiction over a person who would have been a defe

19、ndant in a civil action underparagraph (1); or (II) through due diligence was not able to find a person who would have been a defendant in a civil action underparagraph (1) by- (aa) sending a notice of the alleged violation and intent to proceed under this paragraph to the registrant ofthe

20、 domain name at the postal and e-mail address provided by the registrant to the registrar; and (bb) publishing notice of the action as the court may direct promptly after filing the action.(B) The actions under subparagraph (A)(ii) shall constitute service of process. (C) In an in rem action un

21、der this paragraph, a domain name shall be deemed to have its situs in the judicial district in which- (i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or (ii) documents sufficient to establish control and autho

22、rity regarding the disposition of the registration and use of the domain name are deposited with the court. (D) (i) The remedies in an in rem action under this paragraph shall be limited to a court order for the forfeiture or cancellation of the domain name or the transfer of the domain name to

23、 the owner of the mark. Upon receipt of written notification of a filed, stamped copy of a complaint filed by the owner of a mark in a United States district court under this paragraph, the domain name registrar, domain name registry, or other domain name authority shall- (I) expeditiously depo

24、sit with the court documents sufficient to establish the court's control and authority regarding thedisposition of the registration and use of the domain name to the court; and (II) not transfer, suspend, or otherwise modify the domain name during the pendency of the action, except upon ord

25、er of the court.(ii) The domain name registrar or registry or other domain name authority shall not be liable for injunctive or monetary relief under this paragraph except in the case of bad faith or reckless disregard, which includes a willful failure to comply with any such court order.(d) (3) The

26、 civil action established under paragraph (1) and the in rem action established under paragraph (2), and any remedy available under either such action, shall be in addition to any other civil action or remedy otherwise applicable. (d) (4) The in rem jurisdiction established under paragraph (2)

27、shall be in addition to any other jurisdiction that otherwise exists, whether in rem or in personam.'(b) CYBERPIRACY PROTECTIONS FOR INDIVIDUALS- (1) IN GENERAL-(A) CIVIL LIABILITY- Any person who registers a domain name that consists of the name of another living person, or a name substant

28、ially and confusingly similar thereto, without that person's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person. (B) EXCEPTION- A person who in good fait

29、h registers a domain name consisting of the name of another living person, or a name substantially and confusingly similar thereto, shall not be liable under this paragraph if such name is used in, affiliated with, or related to a work of authorship protected under title 17, United States Code, incl

30、uding a work made for hire as defined in section 101 of title 17, United States Code, and if the person registering the domain name is the copyright owner or licensee of the work, the person intends to sell the domain name in conjunction with the lawful exploitation of the work, and such registratio

31、n is not prohibited by a contract between the registrant and the named person. The exception under this subparagraph shall apply only to a civil action brought under paragraph (1) and shall in no manner limit the protections afforded under the Trademark Act of 1946 (15 U.S.C. 1051 et seq.) or other

32、provision of Federal or State law.(2) REMEDIES- In any civil action brought under paragraph (1), a court may award injunctive relief, including the forfeiture or cancellation of the domain name or the transfer of the domain name to the plaintiff. The court may also, in its discretion, award costs an

33、d attorneys fees to the prevailing party. (3) DEFINITION- In this subsection, the term domain name' has the meaning given that term in section 45 of the Trademark Act of 1946 (15 U.S.C. 1127). (4) EFFECTIVE DATE- This subsection shall apply to domain names registered on or after the da

34、te of the enactment of this Act. SEC. 3003. DAMAGES AND REMEDIES. (a) REMEDIES IN CASES OF DOMAIN NAME PIRACY- (1) INJUNCTIONS- Section 34(a) of the Trademark Act of 1946 (15 U.S.C. 1116(a) is amended in the first sentence by striking (a) or (c)' and inserting (a), (c), or (d)'

35、;. (2) DAMAGES- Section 35(a) of the Trademark Act of 1946 (15 U.S.C. 1117(a) is amended in the first sentence by inserting , (c), or (d)' after section 43(a)'.(b) STATUTORY DAMAGES- Section 35 of the Trademark Act of 1946 (15 U.S.C. 1117) is amended by adding at the end the following:&

36、#160;(d) In a case involving a violation of section 43(d)(1), the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits, an award of statutory damages in the amount of not less than $1,000 and not more than $100,000 p

37、er domain name, as the court considers just.SEC. 3004. LIMITATION ON LIABILITY. Section 32(2) of the Trademark Act of 1946 (15 U.S.C. 1114) is amended- (1) in the matter preceding subparagraph (A) by striking under section 43(a)' and inserting under section 43(a) or (d)' and(2) by

38、redesignating subparagraph (D) as subparagraph (E) and inserting after subparagraph (C) the following: (D) (i)(I) A domain name registrar, a domain name registry, or other domain name registration authority that takes any action described under clause (ii) affecting a domain name shall not be l

39、iable for monetary relief or, except as provided in subclause (II), for injunctive relief, to any person for such action, regardless of whether the domain name is finally determined to infringe or dilute the mark. (II) A domain name registrar, domain name registry, or other domain name registra

40、tion authority described in subclause (I) may be subject to injunctive relief only if such registrar, registry, or other registration authority has- (aa) not expeditiously deposited with a court, in which an action has been filed regarding the disposition of the domain name, documents sufficien

41、t for the court to establish the court's control and authority regarding the disposition of the registration and use of the domain name; (bb) transferred, suspended, or otherwise modified the domain name during the pendency of the action, except upon order of the court; or (cc) willful

42、ly failed to comply with any such court order. (ii) An action referred to under clause (i)(I) is any action of refusing to register, removing from registration, transferring, temporarily disabling, or permanently canceling a domain name- (I) in compliance with a court order under section 43(d);

43、 or (II) in the implementation of a reasonable policy bysuch registrar, registry, or authority prohibiting the registration of a domain name that is identical to, confusingly similar to, or dilutive of another's mark. (iii) A domain name registrar, a domain name registry, or other domain na

44、me registration authority shall not be liable for damages under this section for the registration or maintenance of a domain name for another absent a showing of bad faith intent to profit from such registration or maintenance of the domain name. (iv) If a registrar, registry, or other registra

45、tion authority takes an action described under clause (ii) based on a knowing and material misrepresentation by any other person that a domain name is identical to, confusingly similar to, or dilutive of a mark, the person making the knowing and material misrepresentation shall be liable for any dam

46、ages, including costs and attorney's fees, incurred by the domain name registrant as a result of such action.The court may also grant injunctive relief to the domain name registrant, including the reactivation of the domain name or the transfer of the domain name to the domain name registrant.&#

47、160;(v) A domain name registrant whose domain name has been suspended, disabled, or transferred under a policy described under clause (ii)(II) may, upon notice to the mark owner, file a civil action to establish that the registration or use of the domain name by such registrant is not unlawful under

48、 this Act. The court may grant injunctive relief to the domain name registrant, including the reactivation of the domain name or transfer of the domain name to the domain name registrant.SEC. 3005. DEFINITIONS. Section 45 of the Trademark Act of 1946 (15 U.S.C. 1127) is amended by inserting aft

49、er the undesignated paragraph defining the term counterfeit' the following: The term domain name' means any alphanumeric designation which is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electro

50、nic address on the Internet. The term Internet' has the meaning given that term in section 230(f)(1) of the Communications Act of 1934 (47 U.S.C. 230(f)(1).'SEC. 3006. STUDY ON ABUSIVE DOMAIN NAME REGISTRATIONS INVOLVING PERSONAL NAMES. (a) IN GENERAL- Not later than 180 days after the

51、date of the enactment of this Act, the Secretary of Commerce, in consultation with the Patent and Trademark Office and the Federal Election Commission, shall conduct a study and report to Congress with recommendations on guidelines and procedures for resolving disputes involving the registration or

52、use by a person of a domain name that includes the personal name of another person, in whole or in part, or a name confusingly similar thereto, including consideration of and recommendations for- (1) protecting personal names from registration by another person as a second level domain name for

53、 purposes of selling or otherwise transferring such domain name to such other person or any third party for financial gain; (2) protecting individuals from bad faith uses of their personal names as second level domain names by others with malicious intent to harm the reputation of the individua

54、l or the goodwill associated with that individual's name; (3) protecting consumers from the registration and use of domain names that include personal names in the second level domain in manners which are intended or are likely to confuse or deceive the public as to the affiliation, connect

55、ion, or association of the domain name registrant, or a site accessible under the domain name, with such other person, or as to the origin, sponsorship, or approval of the goods, services, or commercial activities of the domain name registrant; (4) protecting the public from registration of domain names that include the personal names of government officials, official candidates, and potential official candidates for Federal, State, or local political office in the United States, and the use of such doma