Page:United States Statutes at Large Volume 113 Part 2.djvu/1064

 113 STAT. 1501A-546 PUBLIC LAW 106-113—APPENDIX I "(ii) registers, traffics in, or uses a domain name that— "(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to 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 "(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, 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 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'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 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 conduct 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 indicating 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 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) 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 registration, trafficking, or use of a domain name under this paragraph, a court may order

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