Abstract

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes are based on trademark law. Although a number of individuals have successfully used these rules in practice, the focus on trademark law has led to inconsistent and often arbitrary results. Additionally, commentators have questioned recent expansions of trademark law in the Internet context. This Article suggests that if personal names merit legal protection in cyberspace, it should be under an appropriate set of legal rules, rather than through further expansion of trademarks. This Article develops a new framework for personal domain name disputes based on the theories underlying the right of publicity tort. Unlike trademark law, this tort is aimed at the protection of individual names and likenesses. It has not been utilized much in cyberspace largely because of time, cost, and jurisdictional disadvantages of litigation as opposed to the quicker and cheaper, but trademark-based, Uniform Domain Name Dispute Resolution Policy (“UDRP”). This article suggests the creation of a new personal domain name dispute resolution policy (“PDRP”) that combines the procedural advantages of the UDRP with the theory underlying the right of publicity tort.

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