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SB-342 Misleading advertising: domain and subdomain names.(2019-2020)

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Date Published: 07/11/2019 09:00 PM
SB342:v95#DOCUMENT

Amended  IN  Assembly  July 11, 2019
Amended  IN  Senate  May 17, 2019
Amended  IN  Senate  May 06, 2019
Amended  IN  Senate  March 27, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 342


Introduced by Senator Hertzberg

February 19, 2019


An act to add Section 17500.10 to the Business and Professions Code, relating to business. An act to amend Sections 17525 and 17526 of the Business and Professions Code, relating to business.


LEGISLATIVE COUNSEL'S DIGEST


SB 342, as amended, Hertzberg. Misleading advertising: ticket websites. Misleading advertising: domain and subdomain names.
Existing law makes it unlawful to, with bad faith intent, traffic in or use a domain name that is identical or confusingly similar to the personal name of another living person or deceased personality without regard to the goods or services of the parties, except if the name is connected to a work of authorship. Existing law authorizes a court to consider specified factors in making a finding regarding bad faith intent, including that it was the intent of the person using the name to divert consumers from the person’s or deceased personality’s online location to a site that could harm the goodwill of that person or to tarnish or disparage that person.
This bill would, instead, make it unlawful for a person, with bad faith intent, to register, traffic in, or use a domain name or subdomain name that is identical or confusingly similar to either the personal name of another living person or deceased personality without regard to goods or services or the name of a specified entity for the purpose of selling or reselling goods, as defined. The bill would provide that confusingly similar includes a misspelling of the domain or subdomain name. The bill would provide that this prohibition does not apply if the name is used with the consent of that specified entity or an authorized representative of that entity. The bill would authorize a court to consider as a factor in making a finding regarding bad faith intent that a person intended to divert consumers from the online location of a specified entity to a site accessible under the domain name that could harm the goodwill represented by that entity’s name either for commercial gain or with the intent to tarnish or disparage the entity by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site. The bill would create a private right of action for violation of these provisions and would provide that a remedy obtained for a violation of these provisions is cumulative with other available remedies.

Existing law, the Consumers Legal Remedies Act, prohibits the misrepresentation of the source, sponsorship, approval, or certification of goods or services by a person in a transaction intended to result or that actually results in the sale of goods or services to a consumer. The act further prohibits the misrepresentation of the affiliation, connection, or association with another by a person in a transaction intended to result or that results in the sale of goods or services to a consumer.

Existing law makes it unlawful for a person, corporation, or association, or any employee of a corporation or association, to engage in advertising practices conducted by specified means of dissemination or publication, including over the internet, if a statement is made or disseminated that is untrue or misleading, and which by the exercise of reasonable care should be known to be untrue or misleading.

Existing federal law, the Lanham Act, governs the registration and use of trademarks, including by prohibiting infringement of registered trademarks and providing specified defenses to an accusation of trademark infringement.

This bill would prohibit a ticket website operator, as defined, from including in a manner that is false, deceptive, or misleading the name or trademark of a specific professional or collegiate team, professional or collegiate league, theme or amusement park, or venue where live entertainment events are held, in the uniform resource locator (URL) of a ticket website, as defined. Under the bill, the prohibitions would not apply to a ticket website operator who acts with the consent of an authorized agent of the team, league, park, venue, or event, as specified. The bill would create a private civil right of action for a violation of these provisions.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 17525 of the Business and Professions Code is amended to read:

17525.
 (a) It is unlawful for a person, person, with a bad faith intent intent, to register, traffic in, or use a domain name, or subdomain name that is identical or confusingly similar to the personal name of another living person or deceased personality, without regard to the goods or services of the parties. to, because of, among other things, misspelling of the domain or subdomain name, either of the following:
(1) The personal name of another living person or deceased personality, without regard to the goods or services of the parties.
(2) The name of any of the following used to sell or resell, or offer to sell or resell, goods:
(A) A specific professional or collegiate sports team, professional or collegiate sports league, theme or amusement park, or venue where concerts, sports, or other live entertainment events are held.
(B) A specific event, performance, or exhibition, including the name of a person, professional or collegiate team, performance, group, or entity scheduled to perform or appear at that event.
(b) This section shall not apply if the name in the case of a name registered as a domain name is connected to a work of authorship, including, but not limited to, fictional or nonfictional entertainment, and dramatic, literary, audiovisual, or musical works. or subdomain name in either of the following circumstances:
(1) The personal name described in paragraph (1) of subdivision (a) is connected to a work of authorship, including, but not limited to, fictional or nonfictional entertainment, and dramatic, literary, audiovisual, or musical works.
(2) The person whose personal name is described in paragraph (1) of subdivision (a), or the authorized agent of an entity whose name is described by paragraph (2) of subdivision (a), consents to the registration, trafficking, or use of the name as a domain or subdomain name.
(c) A domain name registrar, a domain name registry, or any other domain name registration authority that takes any action described in subdivision (a) that affects a domain name shall not be liable to any person for that action, regardless of whether the domain name is finally determined to infringe or dilute a trademark or service mark.
(d) A party who has suffered injury in fact and has lost money or property as a result of a violation of this section may bring a civil action for recovery of actual, consequential, and punitive damages, if warranted, and shall be awarded reasonable attorney’s fees if the action is resolved in that party’s favor.
(e) For purposes of this section, “goods” includes tickets to a concert, sporting event, or other live entertainment event. “Goods” also includes clothing and memorabilia bearing the name or trademark of an entity described in paragraph (2) of subdivision (a).
(f) The remedies provided by this section are cumulative and shall not be construed as restricting a remedy that is otherwise available, including, but not limited to, a remedy available under Chapter 2 (commencing with Section 14200) of Division 6, or Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of this Code.

SEC. 2.

 Section 17526 of the Business and Professions Code is amended to read:

17526.
 In determining whether there is a bad faith intent pursuant to Section 17525, a court may consider factors, including, but not limited to, the following:
(a) The trademark or other intellectual property rights of the person alleged to be in violation of this article, if any, in the domain name.
(b) The extent to which the domain name consists of the legal name of the person alleged to be in violation of this article or a name that is otherwise commonly used to identify that person.
(c) The prior use, if any, by the person alleged to be in violation of this article of the domain name in connection with the bona fide offering of any goods or services.
(d) The legitimate noncommercial or fair use of the person’s or deceased personality’s name in an Internet Web site internet website accessible under the domain name by the person alleged to be in violation of this article.
(e) The intent of a person alleged to be in violation of this article to divert consumers from the person’s or deceased personality’s name online location to a site accessible under the domain name that could harm the goodwill represented by the person’s or deceased personality’s name either for commercial gain or with the intent to tarnish or disparage the person’s or deceased personality’s name by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site. do either of the following:
(1) Divert consumers from the person’s or deceased personality’s online location to a site accessible under the domain name that could harm the goodwill represented by the person’s or deceased personality’s name either for commercial gain or with the intent to tarnish or disparage the person’s or deceased personality’s name by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site.
(2) Divert consumers from the online location of an entity described in paragraph (2) of subdivision (a) of Section 17525 to a site accessible under the domain name that could harm the goodwill represented by that entity’s name either for commercial gain or with the intent to tarnish or disparage the entity by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site.
(f) The offer by a person alleged to be in violation of this article to transfer, sell, or otherwise assign the domain name to the rightful owner or any third party for substantial consideration without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services.
(g) The intentional provision by the person alleged to be in violation of this article of material and misleading false contact information when applying for the registration of the domain name.
(h) The registration or acquisition by the person alleged to be in violation of this article of multiple domain names that are identical or confusingly similar to names of other living persons or deceased personalities. described in subdivision (a) of Section 17525.
(i) Whether the person alleged to be in violation of this article sought or obtained consent from the rightful owner to register, traffic in, or use the domain name.
(j) The intent of a person alleged to be in violation of this article to mislead, deceive, or defraud users of the internet website, including consumers and voters.

SECTION 1.Section 17500.10 is added to the Business and Professions Code, to read:
17500.10.

(a)For purposes of this section:

(1)“Ticket website” means an internet website or mobile application that advertises the sale or resale of tickets or offers the sale or resale of tickets.

(2)“Ticket website operator” means a person who owns, operates, manages, licenses, or controls a ticket website.

(3)“URL” means the uniform resource locator for an internet website, which may include both a domain name and subdomain names.

(b)A ticket website operator shall not use a subdomain or domain name in a ticket website’s URL that contains any of the names or trademarks described in subdivision (c) if the name or trademark described in subdivision (c) is used in a manner that is false, deceptive, or misleading.

(c)Subdivision (b) applies to all of the following:

(1)The name of a specific professional or collegiate sports team, professional or collegiate sports league, theme or amusement park, or venue where concerts, sports, or other live entertainment events are held.

(2)The name of a specific event, performance, or exhibition, including the name of a person, professional or collegiate team, performance, group, or entity scheduled to perform or appear at that event.

(3)A trademark not owned by the website operator, including, but not limited to, a trademark owned by authorized agents or partners of the venue or event identified pursuant to paragraph (1) or (2).

(4)A trademark or name substantially similar to those referred to in this subdivision, including, but not limited to, a misspelling of a trademark or name referred to in paragraph (1), (2), or (3).

(d)Subdivision (b) does not apply to a ticket website operator who acts with the consent of an authorized agent of the team, league, park, venue, or event with a name or trademark covered by subdivision (c).

(e)A party that is directly harmed by a violation of this section may bring an action against the ticket website operator that has violated this section seeking actual, consequential, and punitive damages and shall be awarded reasonable attorney’s fees if the action is resolved in the party’s favor.