Your client runs a subscription website called “BBR – Bum Battle Royale” (website is www.bumbattleroyale.com). Both BBR and “Bum Battle Royale” are registered trademarks (collectively “the BBR marks”).
That website charges $20 per month for access to films of homeless people beating each other up for prizes. They are usually dressed up as Pirates and Ninjas.
The site is wildly popular.
About a year after launch, they inaugurate an online affiliate program. Any affiliate that refers a sign-up gets $10. The affiliate agreement calls for BBR to have the right to terminate any Affiliate who does not conform to their detailed standards of acceptable conduct. However, BBR rarely terminates an Affiliate — especially if that affiliate is referring traffic. The program has been running for 6 years.
Affiliates come up with all kinds of creative ways to refer traffic. Most use banner ads and blogs.
Some set up their own websites, using the BBR logo and BBR name.
Others simply use typographical errors of the www.bumbattleroyale.com in order to “typosquat” on the BBR marks. However, these typosquats refer traffic to the client’s website. They are operating exactly like the defendants in Land’s End Inc. v. Remy et al., 447 F. Supp. 2d 941 (W.D. Wis. 2006).
Three questions:
- Is the failure to exercise the control granted by the agreement fatal to the BBR marks?
- What about the typographical errors? Is a failure to control those fatal to the BBR marks?
- What is your advice, moving forward, for the BBR affiliate program?
Due Thurs, Oct. 9. Same rules as the rest of the assignments.
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