If no likelihood of confusion results, even a prominent appropriation of a trade-mark does not result in trade-mark liability.
com> for a website that criticizes the owner of the trade-mark or name or its goods, services or business.
Cybergriping has been held not to incur liability for a trade-mark cause of action provided that the activity is not commercial.
39) Some decisions adopt the view that a "-sucks" domain name is not necessarily privileged as free speech, holding that the use of another person's trade-mark in a domain name is more analogous to a source identifier than to a protected communication, and that the scope of protection for speech depends in part on the intentions of the registrant.
Since the United States courts analyze these issues on the basis of the right of commercial free speech under the First Amendment, a Canadian court would likely define a trade-mark owner's rights so as not to violate the right to freedom of expression under the Charter.
In order for a complainant to succeed in a UDRP proceeding, it must establish that: (i) it has rights in a trade-mark or trade name and the registrant's domain name is identical or confusingly similar to the complainant's mark or name; (ii) the registrant has no right or legitimate interest in the domain name; and (iii) the registrant registered and used the domain name in bad faith.
com> website is sponsored, affiliated or endorsed by the trade-mark owner.
One approach is to start with the anti-cybersquatting intent of the UDRP and to interpret "identical or confusingly similar" to mean that, whenever a domain name incorporates another's trade-mark, or a confusingly similar approximation, this factor is satisfied regardless of the other components of the domain name.
46) While Internet users are unlikely to believe that the trade-mark owner actually sponsors the site, it is likely that potential customers would visit the site, if only to satisfy their curiosity.
com> site may be mistaken for a trade-mark owner's official complaint site.
Thus, such users may believe that any name using the trade-mark is associated with the complaint.