prior probability

“In fact, the only thing that really bothered [Sean Parker] about the site was the ‘the’ in the name. It wasn’t necessary. He hated unnecessary things.” –Excerpt from Chapter 22 of Accidental Billionaires.

In “The Social Network” (the movie version of the bestselling book Accidental Billionaires), Sean Parker advises business partners Mark Zuckerberg and Eduardo Saverin to drop the word “the” in the company’s original name and web address: “TheFacebook.com.” But there’s an important legal problem that both the movie and the book fail to explore: what if a so-called cybersquatter has registered the domain name “facebook.com” first? In other words, how can a company like Facebook obtain the legal rights to “Facebook.com” if somebody else has already registered that same domain name first? (Also, what happens if a cybersquatter has registered a similar domain name like “face-book.com”?)

Accordingly, in our next class we will address these real-life legal questions by re-enacting an actual private arbitration proceeding conducted under the auspices of the World Intellectual Property Organization (WIPO): Facebook, Inc. v. Fabulous.com Pty Ltd., Case No. D2007-1193. We will need two volunteers for this activity:

I. Legal representative for the Complainant: you represent Facebook. To win this case, you will have to prove the following three elements:

• Why the domain name “face-book.com” is identical or confusingly similar to “Facebook.com”;
• Why the Respondent (i.e. the current owner of the domain name “face-book.com”) does not have a legitimate interest in the domain name “face-book.com”;
• Why the respondent is acting in bad faith.

II. Legal representative for the Respondent: you represent Fabulous.com Pty Ltd., the company that owns the legal rights to the domain name “face-book.com”, and in order to prevail in this case, you will have to persuade the arbitration panel of just one thing:

• Why the domain name “face-book.com” is not identical or confusingly similar to “Facebook.com,” or
• Why your company has a legitimate interest in the domain name “face-book.com,” or
• Why your company is not acting in bad faith.

III. The class as a whole will play the role of the WIPO arbitration panel and will thus decide the outcome of this case.

But somebody already owns the domain name “facebook.com”!