Report Title:

Cybersquatting

 

Description:

Prohibits cybersquatting, the bad faith registration of domain names on the internet. Establishes penalties. (HB1221 HD1)

 

HOUSE OF REPRESENTATIVES

H.B. NO.

1221

TWENTY-FIRST LEGISLATURE, 2001

H.D. 1

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 a new part to be appropriately designated and to read as follows:

"Part . CYBERSQUATTING

§481B-A Definitions. As used in this part unless the context requires otherwise:

"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" means a transaction that includes but is not limited to a sale, purchase, loan, pledge, license, exchange of currency, or any other transfer for consideration or receipt in exchange for consideration.

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

(b) In determining whether there is bad faith intent under subsection (a), a court may consider, but is not limited to consideration of, whether the person alleged to be in violation of section 481B-B:

(1) Has trademark or other intellectual property rights in the domain name;

(2) Is legally named or is commonly identified by a name that is part of the domain name, and the extent to which the domain name consists of that legal or commonly used name;

(3) Previously used the domain name in connection with the bona fide offering of any goods or services;

(4) Made legitimate, noncommercial, or fair use of a living or deceased person's name in an internet web site accessible under the domain name;

(5) Intended to divert consumers from a living or deceased person's online location to a site accessible under the domain name that could harm the goodwill represented by the living or deceased person's name:

(A) For commercial gain; or

(B) To tarnish or disparage the living or deceased person's name,

by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;

(6) Offered 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;

(7) Intentionally provided material and misleading false contact information when applying for the registration of the domain name;

(8) Registered or acquired multiple domain names that are identical or confusingly similar to names of other living or deceased persons; and

(9) Sought or obtained consent from the living person or other rightful owner of a personal name, to register, traffic in, or use the domain name.

(c) 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 fiction or nonfiction entertainment and dramatic, literary, audiovisual, or musical works.

(d) A domain name registrar, domain name registry, or any other domain name registration authority that takes any action within the scope of the authority's business and 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 violate this section.

§481B-D Penalties. (a) A court may impose the following remedies for violation of section 481B-B:

(1) An injunction against the continued use of the domain name, that shall be issued without bond;

(2) Transfer of the domain name to the living person or the legal representative of the deceased person whose name was subject to cybersquatting; and

(3) A civil fine of up to $5,000 per domain name.

(b) The attorney general may enforce this part on behalf of the State. The attorney general shall respond in writing within thirty days to a request by a person or a deceased person's legal representative to enforce section 481B-B. If the attorney general does not respond in writing within thirty days, or responds in writing within thirty days and declines to prosecute the action, the person or the deceased person's legal representative may file an action under this part in the appropriate court and shall be entitled if successful to attorney's fees and costs."

SECTION 2. Chapter 481B, Hawaii Revised Statutes, is amended by designating sections 481B-1 to 481B-14 as part I and inserting a title before section 481B-1 to read as follows:

"PART I. MISCELLANEOUS PROVISIONS"

SECTION 3. 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 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.