Ford loses hyperlinking dispute

Hyperlinks should be excluded from domain name disputes, a U.S. judge said this week as Ford Motor lost its battle to stop the owner of an offensive Web address from linking to its site.

Judge Robert Cleland of the U.S. District Court for the Eastern District of Michigan rejected claims that the automaker's trademark was being violated by a hyperlink that pointed the domain name F***edGeneralMotors.com at Ford's home page.

He dismissed the case on the basis that the trademark was not included in the domain name, which insults Ford's biggest competitor, but rather in the programming code, which creates a hyperlink to the Ford.com site.

"Programming code, unlike the unauthorized use of a trademark as a domain name, does not inhibit Internet users from reaching the Web sites that are most likely to be associated with the trademark holder," Cleland said. "Trademark law does not permit (Ford) to enjoin persons from linking to its home page simply because it does not like the domain name or other content of the linking Web page."

Ford had requested an injunction against 2600 Enterprises to prevent it from hyperlinking to its Web site or referring to it in DNS (domain name server) records. It argued that the publishing company's actions constituted a commercial use, as it was preventing Ford from "fully exploiting the value of its mark."

The judge rejected claims that the hyperlink sought "commercial" gain.

"If the (Federal Trademark Dilution Act's) 'commercial use' requirement is to have any meaning, it cannot be interpreted so broadly as to include any use that might disparage or otherwise commercially harm the mark owner," he said.

2600 has been embroiled in another hyperlinking dispute for the past two years. A court has prevented the 2600 Web site and its publisher from posting links to computer code known as DeCSS--a program that allows DVD movies to be decoded and played on personal computers. The publisher has requested a rehearing by the full 2nd U.S. Circuit Court of Appeals in New York.

Wendy McAuliffe reported from London.