B. The <dellorussosucks.com> domain name.
Even though Respondent has never used it for any purpose other than a placeholder, this disputed domain name raises a question independent of the content of Respondentâs active site: Is posting this name as an Internet website itself Respondentâs âspeechâ entitled to First Amendment protection? At least one American court has held that it is. See The Taubman Co. v. Webfeats, supra, at 778. If that be the case, does the First Amendment confer a ârightâ on Respondent under paragraph 4(a)(ii) of the Policy?
These questions require an analysis different from that made above under paragraph 4(a)(i) of the Policy. The latter is a mechanical (though reasoned) comparison of the appearance, spelling, sound, and other objective characteristics of the disputed domain name against those of the mark,9 without regard to the content of the site.10 The First Amendment issue, in contrast, touches on application of national law to the facts of the proceeding. That the source of the national law in the present proceedings is the Bill of Rights demands special attention.
The phrase making up this domain name is undoubtedly expressive; in fact its message is clear and unmistakable to any English speaker and very likely to others familiar with certain words and phrases whose meanings and expressive qualities transcend a single language, such as âOK.â The rationale most often given for the âmajority ruleâ for paragraph 4(a)(i) analysis, that non-English speakers may not readily distinguish the derogatory nature of the word âsucks,â11 even if a valid argument in other contexts (which this Panel doubts), carries little force where, as in this proceeding, the mark-owning service provider has a practice located in a single city in an English-speaking country.
The rationale for applying the initial interest confusion doctrine in Policy proceedings, that âharm results from the confusion caused by the initial attraction to the site by means of borrowing the complainantâs mark,â12 is similarly weakened when a word of uniformly derogatory meaning dilutes the likelihood of initial confusion. See The Taubman Co. v. Webfeats, supra, at 778, Justice for Children v. R neetso / Robert W. OâSteen, supra (decision based in part upon identity of mark and domain name).
A different majority of the Panel concludes that, in a proceeding involving parties resident in the United States of America, the free speech guaranty of the First Amendment to the Constitution confers a right or legitimate interest on the use of a domain name that itself is an expression of opinion, at least in the absence of other evidence that the registration of this domain name was merely a pretext for cybersquatting, see, e.g., Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662.
This right cannot be set aside under the Telstra line of decisions, as posting a domain name is little different from publishing commentary on a billboard. Though a one-time act the message is delivered each time the message is read. Free speech rights are not limited in time. And the Telstra doctrine presupposes no right in the domain name at the time it is registered.
7. Decision
By majority vote (see Rules, paragraph 15c)), the Panel orders that:
...
(b) as to the disputed domain name <dellorussosucks.com>, the Complaint is denied
