Lady Gaga and fansite caught in a bad romance

November 8, 2011

A string of number one hits and worldwide notoriety weren’t enough to bring Lady Gaga success in a domain name dispute over the use of her stage name. Earlier this fall Lady Gaga, whose real name is Stefani Germanotta, failed to convince an arbitration panel that the domain name was being used illegitimately by one of the singer’s fan sites.

Domain names are allocated through accredited registries that use a central registry system overseen by the Internet Corporation for Assigned Names and Numbers (ICANN). Disputes over domain names are resolved in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the Policy). In order for a domain name to be cancelled or ordered to be transferred under the Policy a complainant must show that: the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; the respondent has no rights or legitimate interests in respect of the domain name; and the domain name has been registered and is being used in bad faith.

Lady Gaga managed to successfully convince the arbitration panel that the domain name was identical to the trade-mark “Lady Gaga,” in which she has rights. She relied on three registrations filed with the United States Patent and Trade-mark Office, the earliest of which were registered in October 2009, as evidence or her rights in the mark. The Panel refused to accept that she had acquired common law rights in the mark as early as September 2006, when she claimed to have first used the mark. Nonetheless, the Panel conceded that at some point she had acquired common law rights in the mark Lady Gaga, even if it could not pinpoint the exact time. It also found that that the domain name in question was identical to the trade-mark, despite the lack of space between the two words and the addition of the “.org.”

It was the second element that proved fatal to Lady Gaga’s claim. The Panel held decisively that the non-commercial fan site was a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain name. The Panel was particularly swayed by the fact that there were multiple notices on the website indicating that it was an unofficial site. Nonetheless, the driving consideration was clearly that the Respondent had no intent to profit from the website. The Panel warned that any future, profit-driven changes to the website might cause the dispute to be decided differently in future. Having found that the domain name was being used for a legitimate purpose, it was unnecessary to consider whether the Respondent had acted in bad faith.

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