The law includes speech protections by requiring courts to consider whether the use of another entity's trademark is fair or noncommercial. Under the statutory factors, courts must also consider whether the domain incorporates the registrant's legal name. Since it was passed, Fausett said many suits have been filed under the Act, often pitting multinational corporations against teenagers and small Web publishers, whose use of trademarks in domain names may or may not constitute infringement. The judge ruled that Internet Dimensions clearly intended to profit by associating its site name with the Mattel dolls. But because the contours of the Act have not been defined by a court's interpretation, the larger effect of the law remains to be seen, Froomkin said.
Nobody wants to be the test case.
Before passage of the Act, traditional trademark law had built-in exceptions for noncommercial uses of trademarks such as fan sites, parody and comparative advertising and sales. Although the new law also forces courts to consider fair noncommercial uses as a factor, Fausett said the practical effect is to give corporations a very big stick to hold over the head of the little guy. The Act includes a provision that makes it easier for a trademark owner to sue in a case where the domain name registrant has falsified contact information and cannot be located after reasonable efforts, said Robert Lytle, a partner with the law firm Howrey, Simon, Arnold and White . The New York court weighed these factors outlined by the Act in considering whether the defendants had acted in bad faith. Lytle cautioned that the Internet's speed could make the legislation outdated quickly.