THE SENATE	S.B. NO.	2958
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII

A BILL FOR AN ACT

relating to online protection of individual rights.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 481B-23, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§481B-23[]]  Determining bad faith intent.  (a)  [In] Except as provided in subsection (c), in any action brought pursuant to this part, it shall be the claimant's burden to prove by a preponderance of the evidence the person's bad faith intent.  In determining whether there is bad faith intent pursuant to section 481B-22, a court may consider factors, including, but not limited to, the following:

(1) The trademark or other intellectual property rights of the person, if any, in the domain name;

(2) The person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;

(3) The person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name;

(4) The person's intent to divert users from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;

(5) The extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify the person;

(6) The person's offer to transfer, sell, or otherwise assign the domain name for financial gain without having used or having an intent to use, the domain name in the bona fide offering of any goods or services or the person's prior conduct indicating a pattern of such conduct;

(7) The person's provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person's prior conduct indicating a pattern of such conduct;

(8) The person's registration or acquisition of multiple domain names that the person knew were identical or confusingly similar to marks of others that were distinctive at the time of registration of the domain names, without regard to the goods or services of the parties;

(9) The person's registration or acquisition of multiple domain names that the person knew were identical or confusingly similar to the name of another living person, without the person's consent; and

(10) The person sought or obtained consent from the rightful owner to register, traffic in, or use the domain name.

(b)  Bad faith intent described in subsection (a) shall not be found in any case in which the court determines that the person alleged to be in violation of this part believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.

(c)  If the domain name consists solely of the legal name of the claimant or a name that is otherwise commonly used to identify the claimant, and if the claimant can demonstrate to a court of law with reasonable certainty the potential of immediate and irreparable harm to the claimant through the misuse of the domain name, the person alleged to be in violation of this part shall have the burden to prove by a preponderance of the evidence that the domain name was not registered in bad faith or will not be used in an unlawful manner."

     SECTION 2.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.

INTRODUCED BY:

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Report Title:

Cybersquatting; Domain Names; Online Protection; Individual Rights; Bad Faith; Burden of Proof

Description:

Shifts the burden of proof from the claimant to the alleged violator in instances where the alleged violator registers a domain name that solely consists of the claimant's legal name or a name that is otherwise commonly used and the claimant can demonstrate with reasonable certainty the potential of immediate and irreparable harm through misuse of the domain name.

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