In a case filed with the National Arbitration Forum, a panel has held that “nominative fair use” is a valid defense and Denied the Claim filed by KBR, Inc. against attorneys who had registered KBRLitigation.com. In the case of KBR, Inc. v. Jeffrey L. Raizner / Jeffrey Raizner, found at http://domains.adrforum.com/domains/decisions/1413439.htm, the Parties are opponents in ongoing lawsuits. Respondent’s law firm represents plaintiffs who served the United States of America as military in Iraq, alleging they have been injured by toxic exposure to chemical products due to Complainant’s actions in Iraq. Respondent contends that in order to inform the public, including plaintiffs and their families, about ongoing developments in such litigations, it created a website at the disputed domain name containing information of interest to these issues, in an exercise of free speech under the First Amendment to the Constitution of the United States of America.
Complainant characterizes Respondent’s actions slightly differently: “Respondent is merely using the KBR trademark to draw attention to its own legal services and to (sign) up additional plaintiffs for its litigation efforts against Complainant.”
Respondent’s actions, in the Panel’s view, represent a nominative fair use of Complainant’s mark. Such use is protected both under paragraph 4(c)(iii) of the Policy and under the trademark laws of the United States of America. Nominative use is present where the respondent needs to use the mark to describe its goods or services, uses no more of the mark than necessary, and does not falsely suggest sponsorship or endorsement by the mark owner. Respondent’s use of the disputed domain name in this case satisfies the nominative use test. Accordingly, the Panel finds that Complainant has not proved the second element set forth in paragraph 4(a) of the Policy.
“fair use” has been a valid defense under UDRP Law for some time. However, this is the first time this writer has seen NOMINATIVE FAIR USE given as the reason for denying a UDRP claim.
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