Domain Names

Domain Name Case Under ACPA Failed Because Trademark Was Not Distinctive

The federal Anticybersquatting Consumer Protection Act (ACPA) [15 U.S.C. 1125(d)] is a provision in U.S. law that gives trademark owners a cause of action against one who has wrongfully registered a domain name. In general, the ACPA gives rights to owners of trademarks that are either distinctive or famous at the time the defendant registered the offending domain name. The Eleventh Circuit Court of Appeals recently affirmed the decision of a lower court that dismissed an ACPA claim... more

Will .cn Become the New .com?

I recently came across a chart of the most popular top-level domains (TLDs), compiled by Stephane Van Gelder. Although I keep track of country code TLD registrations for the Country Codes of the World map (see also related CircleID post), Stephane tracks all domains, including .com, .net., etc. And when I saw it I got to thinking... more

Value or Love for New gTLDs?

ICANN has started its historic and controversial program to expand the number of generic Top-Level Domains (gTLDs). This essay outlines the factors needed for the program to create economic value, warns against a cognitive trap that complicates selection of a new gTLD and considers the value contribution of the registries. I will not go into relevant macro measures, but I examine the problems associated with the popular measure of simply counting the number of registrations. more

The TPP and the DNS

On November 5, 2015 the Office of the U.S. Trade Representative (USTR) released the official text of the Trans-Pacific Partnership (TPP). That text consists of 30 separate Chapters totaling more than 2,000 pages, and is accompanied by four additional Annexes and dozens of Related Instruments. Only those who negotiated it are likely to have a detailed understanding of all its provisions, and even that probably overstates reality. more

Dot-Biz Saga

Two sides can oppose each other strenuously and still be wrong in exactly the same way. For or against, too much of the debate about the new ICANN top-level domains (TLDs) ignores TLD signaling and uses inappropriate TLD success measures. Here I spotlight the key mistakes by concentrating on ".biz" registrations, and I put forward some possible remedies. more

Long Live the Neodomainers: The Domain Game, Good or Bad

David Kesmodel's to be released book The Domain Game, irrespective of how it is received, will undoubtedly catapult the industry into a new era: that of the neodomainers, the super crunchers. To analyze the impact of the book on the industry, let's look at stylized exchange scenarios featuring a domainer as intermediary (an intermediary in that he or she acquires from the seller and then hopes to resell to the buyer)... more

Outdated Whois Information Might Lead to False Light Tort: Meyerkord v. Zipatoni

It's a late entry, but this opinion may be a dark horse candidate for the most bizarre case of 2008. Meyerkord was a Zipatoni employee and listed as the registrant on domain names at Zipatoni's Register.com account. Meyerkord left in 2003. In 2006, Zipatoni ran an astroturfing viral campaign for Sony to promote the Play Station Portable at the domain alliwantforxmasisapsp.com... Unfortunately for Sony -- and Meyerkord -- the campaign did not go well. more

Cybersquatting and Geopolitics Heats Up

Cybersquatting is so 2000, or so we thought. The Uniform Dispute Resolution Policy (UDRP) at WIPO has been chugging along for several years now, methodically determining if complainants IP rights have been violated and reassigning "ownership" of domain names. Typically, the cases are fairly boring. But some recent developments in the world of 800 lb search gorillas, Google and Baidu, suggests that the regime could be faced with substantial pressure in the near future. more

Where to Search UDRP Decisions

Searching decisions under the Uniform Domain Name Dispute Resolution Policy (UDRP) is important - for evaluating the merits of a potential case and also, of course, for citing precedent when drafting documents (such as a complaint and a response) in an actual case. But, searching UDRP decisions is not always an easy task. It's important to know both where to search and how to search. Unfortunately, there is no longer an official, central repository of all UDRP decisions that is freely available online. more

False Expectations: Attorney’s Fees and Statutory Damages in ACPA Actions

There is a degree of dread in the investor community that prized domain names will be forfeited to trademark owners in proceedings under the Uniform Domain Name Dispute Resolution Policy (UDRP). Since the UDRP has no internal appeal mechanism to correct errors of law or judgment, the sole recourse is an action in a court of competent jurisdiction as spelled out in UDRP paragraph 4(k). In the U.S., this would be a district court under the Anticybersquatting Consumer Protection Act (ACPA). more

The Suitable Defendant Rule: In Rem Jurisdiction under the ACPA

The Anticybersquatting Consumer Protection Act (ACPA) creates two distinct avenues by which mark owners may seek a remedy for cybersquatting. A person who is a suitable defendant under 15 U.S.C. §1125(d)(1)(A) is one over whom the court has in personam jurisdiction. However, if the mark owner is "not able to obtain in personam jurisdiction over a person who would have been a defendant" in the ACPA action, then "[t]he owner may file an in rem civil action against a domain name in... more

A Serious Bug in the Similarity Check

A week ago, ICANN announced the latest delay in the New gTLD Program: the so-called "contention sets" will only be published March 1, 2013. The original deadline was July 2012, postponed serially in two-month intervals. The gTLD program is lost in confusing similarity. What went wrong? In order to determine which TLD applications are in contention, it is necessary to say which TLD strings are confusingly similar to one another. more

European Privacy Authorities Object to ICANN Whois Proposals

In response to a letter from ICANN's Noncommercial Users Constituency (NCUC) to data protection authorities concerning overreaching requests of law enforcement agencies in ICANN's ongoing Registrar Accreditation Agreement negotiations, the Article 29 Data Protection Working Party has written the ICANN Board. more

Observations on Resolver Behavior During DNS Outages

When an outage affects a component of the internet infrastructure, there can often be downstream ripple effects affecting other components or services, either directly or indirectly. We would like to share our observations of this impact in the case of two recent such outages, measured at various levels of the DNS hierarchy, and discuss the resultant increase in query volume due to the behavior of recursive resolvers. more

What’s So Outrageous Asking High Prices for Domain Names?

Panels appointed to hear and decide disputes under the Uniform Domain Name Dispute Resolution Policy (UDRP) have long recognized that three letter domains are valuable assets. How investors value their domains depends in part on market conditions. Ordinarily (and for good reason) Panels do not wade into pricing because it is not a factor on its own in determining bad faith. more