While trademark infringement litigation involving domain names has produced varied results, case law suggests that an entity that incorporates the trademark of another in a domain name is far more likely than not to be enjoined. With rare exception, commercial sites housed at such addresses have repeatedly been held to infringe the rights of the trademark’s owner. That trend has dominated whether courts analyze the use under a likelihood of confusion, classic fair use, nominative fair use, or initial interest confusion framework. The Tabari opinion revisits several landmark cases on domain names, overturning our expectations about where they seemed to point. In applying nominative fair use doctrine to domain names incorporating the trademark of another, the Ninth Circuit’s decision in Tabari highlights inconsistencies in how different jurisdictions have handled both areas and crystallizes the question of under what circumstances domain name incorporation will be permitted. This article explores the line of cases considering allegedly infringing domain names and the evolution of nominative fair use doctrine to address the uncertainty at their intersection: when can a website incorporate in its domain name someone else’s trademark?
