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The essay outlines a market-driven and value-adding solution to brand use in domain names. The solution relies heavily on the Electronic Frontier Foundation's remedy to music file sharing. I propose its adoption for new registrations and renewals. Brand sharing in domain names is here to stay; desperate attempts to stop it through legal action are ineffective and will do nothing but destroy value. more
Legal trademark issues related to domain names will take a long time to resolve. Meanwhile, using a statistical model to determine infringement benefits all parties. The legal system has not yet established comprehensive and easy to understand rules under which a domain name is considered to infringe on a third party's trademark. The vacuum allows trademark owners and their agents, such as the Coalition Against Domain Name Abuse (CADNA), to sue domain name owners pretty much at will, but doing so is not always in the best interest of trademark holders. more
As ICANN introduces new generic top level domains (gTLDs) and separates itself from US oversight, it has the opportunity to distance itself from the taint of cybersquatting, brand abuse, and criminal activity involving domains... To underscore the scope of the issue, consider this research on just 30 top Interbrand-ranked global brands. The most recent MarkMonitor Brandjacking Index found cybersquatting incidents increased over 40% in the last year for the brands that were studied; these leading brands suffered as many as 15,000 incidents per brand... more
Yes, that is a title of a real, current legal case and controversy. And, no, the links in this post are not spam... mostly gambling news sites seem to be reporting on this. The Governor of Kentucky, through his Justice and Public Safety Cabinet, has moved in court to have 141 gambling-related domain names transferred to the Kentucky state government, partially because other legal gambling operations in Kentucky, like horseracing, lose revenue to online gaming. Yes, you read that right: by allegedly violating KY law, the state can move to have property used in these unlawful acts transferred to the state. In this case, the "property" in question is the domain names themselves. This case is definitely novel in the realm of cyberlaw, but also is a bit controversial for how it originally proceeded... more
I first outline a brief history of free file-sharing technology, then draw some general and domain name lessons, then outline the what, how, and why that make your activism effective and necessary... The domain name industry is decentralized and atomic in that anyone from anywhere in the world can register a domain name, keep the ownershp name and address private, and host it from a country where the U.S. and European legal systems don't apply. Thus, legal action will only drive domain owners further underground. more
Today the FCC is condemning Comcast's practices with respect to P2P transmissions.I'm happy for FreePress and Public Knowledge today, and I know they have achieved a substantial change in the wind. The basic idea that it's not okay for network access providers to discriminate unreasonably against particular applications is now part of the mainstream communications discourse. That has to be good news. I'm concerned on a couple of fronts. The FCC has taken the view that it can adjudicate, on a case-by-case basis, issues that have to do with "Federal Internet Policy." They used that phrase several times... more
News rumblings are that MySpace is celebrating its $6mm award against Scott Richter and his entities... Who Won? ...I'm not sure what MySpace asked for (their complaint is probably not a reliable barometer) but the overall tone of the document written by the arbitrator is that Richter's companies shouldn't be held entirely liable for all damages to MySpace. (In fact, the arbitrator's decision takes pains to show both sides of Richter. Some would say this is typical in arbitration.) more
The Internet Commerce Association (ICA) has posted a position paper and analysis of S. 2661, introduced on 2/25/08 in the US Senate. While we are firmly opposed to phishing and other criminal activities that may utilize domain names we are very concerned about the provisions of the proposal that appear to provide trademark owners with a means to avoid both UDRP and ACPA actions and alternatively bring private claims against domain names with a lower burden of proof and the potential for far higher monetary damages, without even requiring an allegation that the DN was in any way being utilized in a phishing scheme... more
Once in a while, one comes across a new take on history that challenges everything you thought you knew. If you're the type who engages in bar bets with geeks, then this one is a certain gem. In 2001, Equifax submitted to the USPTO a sworn application to register a curious trademark, which eventually issued in 2004 with this data... Aside from the fact that Equifax has never actually held registration of the domain name efx.com, the truly outstanding fact here is that Equifax and/or its attorney has actually sworn to the United States Government that it was using "EFX.COM" as a mark for the provision of providing educational seminars via the internet since February 1975... Until now, I had imagined that Jon Postel added .com to the root in 1985. more
How prevalent is cybersquatting and typosquatting? Take a look at www.wipo.com, and then compare it with the World Intellectual Property Organization's web site www.wipo.org. Ironically, the WIPO Arbitration and Mediation Center handles a majority of the UDRP domain dispute arbitrations internationally. The very organization which is invested with the authority by ICANN to resolve cybersquatting and typosquatting disputes internationally under the UDRP is, by all appearances, being squatted. Here are two apparent typosquatters... more
As faithful CircleID readers will know, iREIT (Internet REIT, Inc.), a Texas domain name portfolio investment corporation, has been sued by Verizon and by Vulcan Golf for cybersquatting. It appears iREIT is taking steps to clean up its portfolio by deleting obvious typos of famous trademarks... more
Domainer litigation is heating up, and this lawsuit may be the most ambitious anti-domainer lawsuit to date. First, it is a putative class action lawsuit. Second, in addition to naming four leading domainer firms, the plaintiffs provocatively go after Google for providing ads to domainer sites. I believe this is the first lawsuit against Google for its domainer relationships. The complaint itself is a 121 page, 638 paragraph (with one paragraph enumerating 47 defined terms), 4.3MB behemoth alleging trademark infringement and dilution, ACPA violations, RICO and other claims. more
Verizon filed sued against iREIT and Domain Marketplace a couple of weeks ago in a Texas court, alleging cybersquatting. David Kesmodel's blog broke the story, and I used the PACER system to obtain the court filings, which are posted here. Exhibit 5 makes fascinating reading, especially when point #43 in the main statement of claim says "Exhibit 5 details only one famous trademark for each letter of the alphabet." more
David Pecker is the chairman of American Media, Inc., publisher of, among others, National Enquirer and Weekly World News. 'Mr. Ferris' registered the domain name DAVIDPECKER.COM, had a PPC company host it, where it was keyed to ads for porn, because, according to the registrant, the word PECKER was in the domain name. Mr. Pecker brought a UDRP. Although 'Mr. Ferris' (as he is identified in the decision) did not seem (to me) that he could establish a bona fide intent to use the name in conenction with an offering of goods or services, and altohugh there seemed to be plausible evidence of bad faith, the UDRP was denied... more
Warner Brothers Entertainment, which owns the rights to The Dukes of Hazzard and related characters, including DAISY DUKE, failed in its UDRP case against the registrant of the domain name DaisyDukes.com. The Panelist determined that although WB had common law rights in the DAISY DUKE mark and the registrant lacked rights and legitimate interests in the DaisyDukes.com domain name, WB failed to demonstrate that the registrant had registered and used the domain name in bad faith. more
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