Activison in Battle with Rival Fan Base

John Frazier Jr., Guest Author

Modern Warfare, produced by Activison, is a video game series that has been developed for the past few years and is now entering its third installment. ModernWarfare3.com now redirects users to Modern Warfare’s rival, Battlefield 3.  Nerd fight!

Some even thought that EA, makers of Battlefield 3, pulled this stunt on their own. Activison has filed a complaint alleging that this domain was registered in “bad faith”. The unnamed operator of ModernWarfare3.com appears to have ceased and desisted, because ModernWarfare3.com no longer exists.

This may have been an example of domain squatting, a.k.a. “cyber squatting”. According to the U.S. Anticybersquatting Consumer Protection Act, cybersquatting is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else.

In practice, a cybersquatter first squats, then offers to sell the domain — at an inflated price — to whoever holds the applicable trademark.  Furthermore, the act in itself allows for profit earned off of the work or brand of others (if you can get away with it).

However, in this case the apparent squatting wasn’t done for profit. The purpose (as I am aware) for the domain name was instead to defame Activison’s brand and entice viewers to take a look at Battlefield 3. Thus, it falls under a different policy, UDNP (Uniform Domain-Name Dispute-Resolution Policy). Pursuant to UDNP, when a registrant chooses a domain name, he must “represent and warrant,” among other things, that registering the name “will not infringe upon or otherwise violate the rights of any third party” as referenced in the Complaint (see here).

Here’s an excerpt from the Complaint :

The UDRP requires the transfer or cancellation of a domain name if the Complainant can establish (1) that the domain name at issue is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) that the Respondent has no rights or legitimate interests with respect to the domain name; and (3) that the Respondent has registered and used the domain name in bad faith. UDRP 4(a). Each of these factors favors Complainant in this case. Accordingly, transfer of the Domain Name is appropriate.

So, ModernWarfare3.com is no more, ostensibly because of the UDNP. Score one for justice.