Hyperlinks should be excluded from domain name disputes, a US judge said this week in a ruling that saw car maker Ford lose its battle to sue the owner of FuckedGeneralMotors.com for directing traffic to Ford.com.
Eastern Michigan District Court Judge Robert Cleland rejected claims that Ford's trademark was being violated by a hyperlink that pointed the domain name FuckedGeneralMotors.com at its own homepage. He dismissed the case on the basis that the trademark was not included in the domain name, which insults Ford's biggest competitor, but rather in the programming code which does no more than create a hyperlink to the ford.com site.
"Programming code, unlike the unauthorised use of a trademark as a domain name, does not inhibit Internet users from reaching the Web sites that are most likely to be associated with the trademark holder," said Cleland. "Trademark law does not permit (Ford) to enjoin persons from linking to its homepage simply because it does not like the domain name or other content of the linking Web page."
Ford had requested an injunction against 2600 Enterprises to prevent it from hyperlinking to its Web site or referring to it in DNS (domain name server) records. It argued that the publishing company actions constituted a commercial use, as it was preventing Ford from "fully exploiting the value of its mark."
The judge rejected claims that the hyperlink sought "commercial" gain. "If the FTDA's (Federal Trademark Dilution Act) "commercial use" requirement is to have any meaning, it cannot be interpreted so broadly as to include any use that might disparage or otherwise commercially harm the mark owner."