Report Title:

Cybersquatting

 

Description:

Prohibits cybersquatting (the bad faith registration of domain names on the internet). Establishes penalties.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

1221

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CYBERSQUATTING.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 481B, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:

"§481B-A Cybersquatting prohibited. (a) It is unlawful for a person, with a bad faith intent to register, traffic in, or use a domain name, that is identical or confusingly similar to the personal name of another living person or deceased personality, without regard to the goods or services of the parties.

(b) This section shall not apply if the name registered as a domain name is connected to a work of authorship, including, but not limited to, fictional or nonfictional entertainment, and dramatic, literary, audiovisual, or musical works.

(c) A domain name registrar, a domain name registry, or any other domain name registration authority that takes any action described in subsection (a) that affects a domain name shall not be liable to any person for that action, regardless of whether the domain name is finally determined to infringe or dilute a trademark or service mark.

§481B-B Cybersquatting; determining intent. (a) In determining whether there is a bad faith intent pursuant to section 481B-A, a court may consider factors, including, but not limited to, the following:

(1) The trademark or other intellectual property rights of the person alleged to be in violation of this section, if any, in the domain name;

(2) The extent to which the domain name consists of the legal name of the person alleged to be in violation of this section or a name that is otherwise commonly used to identify that person;

(3) The prior use, if any, by the person alleged to be in violation of this section of the domain name in connection with the bona fide offering of any goods or services; and

(4) The legitimate noncommercial or fair use of the person's or deceased personality's name in an internet web site accessible under the domain name by the person alleged to be in violation of section 481B-A.

(b) The intent of a person alleged to be in violation of section 481B-A to divert consumers from the person's or deceased personality's name online location to a site accessible under the domain name that could harm the goodwill represented by the person's or deceased personality's name either for commercial gain or with the intent to tarnish or disparage the person's or deceased personality's name by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site.

(c) The offer by a person alleged to be in violation of section 481B-A to transfer, sell, or otherwise assign the domain name to the rightful owner or any third party for substantial consideration without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services.

(d) The intentional provision by the person alleged to be in violation of section 481B-A of material and misleading false contact information when applying for the registration of the domain name.

(e) The registration or acquisition by the person alleged to be in violation of section 481B-A of multiple domain names that are identical or confusingly similar to names of other living persons or deceased personalities.

(f) Whether the person alleged to be in violation of section 481B-A sought or obtained consent from the rightful owner to register, traffic in, or use the domain name.

(g) As used in this section and section 481B-A:

"Domain name" means any alphanumeric designation that is

registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the internet.

"Traffic in" refers to transactions that include, but are not limited to, sales, purchases, loans, pledges, licenses, exchanges of currency, or any other transfer for consideration or receipt in exchange for consideration.

§481B-C Penalties. (a) Any person violating any provision of section 481B-A shall be subject to the following civil penalties:

(1) An injunction against the continued use of the domain name;

(2) Transfer of the domain name to the living person or heir of the deceased personality; and

(3) Civil fines of up to $5,000 per domain name.

(b) The attorney general may enforce this section on behalf of the State. The attorney general may apply for a temporary or permanent injunction restraining any person from violating or continuing to violate section 481B-A. The injunction shall be issued without bond. If the attorney general is requested by a person or a deceased personality's relative to prosecute the action, the attorney general shall respond within thirty days. If the attorney general does not respond in writing within thirty days that the department will prosecute the action, the person or the deceased personality's relative shall be entitled to prosecute the action and shall be entitled, if the action is successful, to attorney's fees and costs."

SECTION 2. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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