Nearly 15 years ago, Congress passed the Anticybersquatting Consumer Protection Act (ACPA).1 The ACPA amended the federal trademark law known as the Lanham Act by adding two new causes of action aimed at cybersquatting.2 Under the ACPA, a person may be civilly liable “if … that person has a bad faith intent to profit from that mark … and registers, traffics in, or uses a [protected] domain name.”3 Congress also created an in rem action to facilitate recovery of domain names by their rightful owners.4
Although courts are clear that the Lanham Act provides for a cause of action for secondary or contributory liability,5 whether a claim for contributory cybersquatting exists under the ACPA has remained in some dispute. Last year, in Petroliam Nasional Berhad v. GoDaddy.com,6 the U.S. Court of Appeals for the Ninth Circuit rejected contentions that a contributory cybersquatting claim should be permitted to proceed under the ACPA.7 With the U.S. Supreme Court’s decision earlier this month denying certiorari in that case, the Ninth Circuit’s ruling is worthy of exploration.
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