Writings of a techie wizard
Tue, 29 Nov 2011
I thought I was done with this topic for now, but I can't help adding one more quick post, because it now appears that it isn't just media companies who want to put a stranglehold on the Internet. Chanel is getting in on the act. Yes, the perfume maker. Based on what appears to be extremely meager evidence, a Nevada federal judge has ordered that "hundreds" of domain names can be seized by Chanel and transferred to a US registrar (GoDaddy). The judge also ordered that "all Internet search engines" and "all social media websites" must "de-index" the seized domains.
In case you're wondering what "meager" evidence means, it appears that, of the most recent batch of 228 domains that were seized, three were actually verified to be shipping counterfeit merchandise, by placing an order and seeing what was delivered. (Even this "verification" is somewhat dubious, since it was done by Chanel itself and not by a neutral third party. Also, if you're wondering about that "batch", Chanel has been bringing these claims to court in groups, and there does not seem to be any endpoint to this process; they'll just keep on doing it as long as they feel like it.) The rest were seized based on "a Chanel anti-counterfeiting specialist browsing the Web", according to the article linked to above.
For extra fun, the court order that authorizes seizure of the latest 228 domains calls itself a "Temporary Restraining Order". Anyone who has ever tried to switch even an ordinary, non-seized domain from one registrar to another knows how Byzantine the process is. I can only imagine what the companies whose sites were seized, should they be found to not actually be selling counterfeit merchandise, will have to go through to get control of their domains back. So the order might as well say "Permanent" since that's what it will effectively end up being. Eventually, Chanel might even sell the domains it has seized; who says the domain seizure business isn't lucrative?
One should also note that the court order, and the complaint that gave rise to it, are ex parte, which is legalese for "the defendants didn't get a chance to rebut anything". Also, the order is dated November 14, 2011, and it sets a hearing date of November 29, 2011, with any responses to the complaint required to be filed with the court by November 23, 2011. Is it just me, or is that a really short response time? (Particularly as many of the seized domains probably were not even based in the US, which makes a Federal court's jurisdiction rather problematic. Indeed, some non-US registrars apparently have not complied with the court's order to transfer domain registrations to GoDaddy.)
I should make one thing clear: if Chanel wants to defend its trademarks (that's what "counterfeit" amounts to in this case, infringement of trademarks), it is entitled to use legal means to do so. I personally think that anyone who is buying the counterfeit stuff is not going to be a potential customer for the real stuff anyway (for one thing, the real stuff's price is not for the squeamish, and people who are willing to spend that much on perfume don't want the counterfeit stuff), so I strongly doubt any of these "counterfeit" websites are losing Chanel any sales. But that's their call; if they want to spend time and money on what to me is a fruitless pursuit, they're welcome to.
But the appropriate legal means for that fruitless pursuit are not seeking a "temporary" restraining order with an extremely short fuse as a first action. Even the US Congress' previous attempt to emasculate the Internet (and other things), the DMCA, doesn't allow that. (Yes, I know the DMCA refers to copyright, not trademark; but the principle is the same.) In fact, one wonders why the judge's first question to Chanel was not "Have you contacted any of these websites and demanded that they cease and desist?" As the article I linked to above notes, if the US government and US courts are going to behave like this, the Protect IP Act/SOPA battle may end up being rather superfluous. I understand that companies try these shortcuts all the time, but that doesn't mean the government and courts have to cooperate.
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