Comments

1. Jon Schultz says

   September 14, 2013 at 2:30 pm

   The fact that someone can be fined $100,000 for nothing more than registering a domain name is perhaps the biggest infringement on freedom of speech in America.

   A domain name should be seen as a book cover. It doesn’t infringe on any trademark until and unless it is used in a trademark-infringing way, creating confusion with regard to the source of goods, services or ideas.

   Both ACPA and ICANN’s UDRP process give trademark holders much more power than they should reasonably have. At most, UDRP panels should be able to order that the trademark-infringing use of a domain be stopped (requiring the webhosting company to take the site down if the owner refuses to change it); it should not be able to order the transfer of a domain to another party, which is a gross infringement of property rights.

   Dotcom domains were originally put on sale to the public with no restrictions as to ownership, if I’m not mistaken, aside from the 10-year registration limit. Then large companies found that people had registered their company name in dotcom – which was getting type-in traffic and for which the registrants often wanted a lot of money – and they applied pressure to get ICANN to accept the unreasonable principle that trademark holders should be entitled to any domain containing their trademark in any extension.

   What ICANN should have done at that time, and should still do, is to start a new extension or series of new extensions – like .mark, .mark1, .mark2, .mark3, etc. – that only trademark holders can apply for. If a company has a strong trademark which can’t be used by other companies (like Xerox, for example), then it gets the .mark and all other extensions in the series. If the trademark is on a term which can be used by multiple companies in different areas of business, then the most well-known company gets the .mark and .mark1 extensions and the other companies get .mark2, .mark3, etc. in order of notoriety.

   Then the public would have a way of finding the website of a specific company by checking those extensions, without having to depend on the accuracy of search engines, and all of the time and money that is going into ridiculous UDRP proceedings, where companies are trying to usurp property which isn’t rightfully theirs, would be saved. Even if someone other than the Xerox company (again, for example), had originally registered Xerox.com, they could still use the domain in a non-trademark-infringing way, i.e. for a website about the company, as long as the site displayed a very clear and conspicuous disclaimer notifying visitors that it was not affiliated with the company itself – just as I could write a book called Xerox with nothing else on the cover.

   That is reasonable freedom of speech, which neither the U.S. government nor ICANN should be allowed to infringe on.

2. Grim says

   September 15, 2013 at 3:30 am

   Jon Schultz wrote:
   > The fact that someone can be fined $100,000 for
   > nothing more than registering a domain name is
   > perhaps the biggest infringement on freedom of
   > speech in America.

   The ones I checked were registered in China, negating any “freedom of speech in America”, (or USA, more accurately), benefits. Not that “freedom of speech” has anything to do with this.

   The $100,000 fine is mostly symbolic, anyway, the maximum they can get on each infringment. Not like they have any hopes of getting that. I’ve had infringements on a few of my software copyrights before, and successfully settled for less than what I could have legally gotten. Going to court and attempting to get what the real monetary penalty would have been (millions) would have just seen the company go bankrupt and out of business, and me never seeing a penny.

   In any event, spend years building up a brand, and see how you feel when someone registers dozens of domains that include your brand in it. Companies shouldn’t really have to worry about these domains; it’s not like many people probably visit them, and if they do, they would basically see a mostly blank page with “For Sale” on it. But still, it’s the principle and legal aspects of the thing that matter.

   On a side note, I saw that some of the domains have “expired”, which could mean they are slowly being removed. As they should be.

3. Michael Berkens says

   September 15, 2013 at 10:10 am

   For the record The law (ACPA) was passed in 1999

   http://en.wikipedia.org/wiki/Anticybersquatting_Consumer_Protection_Act

4. Jon Schultz says

   September 15, 2013 at 4:09 pm

   If you spend years building up a brand, Grim, you won’t feel good when someone runs an advertisement comparing their product or service to yours and claiming theirs is superior. But as long as they have their facts straight it is perfectly legal to do so, and I think should be. Just because you don’t like something that doesn’t mean a law against it is good public policy.

   It is also legal to open a small hardware store, for example, next door to a large one which advertises a lot – as long, I would imagine, as you have a conspicuous sign with a different name and you don’t have similar decor which tricks people into thinking you are affiliated with the large store. Why shouldn’t the same principle apply to typo domains, assuming there is a very clear and very conspicuous disclaimer on every page of the site (viewable in every major language, which wouldn’t be difficult)?

   Isn’t the essence of trademark regulation to prevent people from creating confusion in the minds of consumers with regard to the source of goods, services or ideas? If no confusion is created, how are trademark rights being violated?

5. Grim says

   September 16, 2013 at 5:50 pm

   Jon,

   Personally I wouldn’t want to take the chance and get a domain with a trademarked brand in it. If you do, that’s up to you. Have fun, but don’t be surprised if the lawyers of the company that you include in your domain name come after you. The laws are what they are, (whether we’re talking trademarks, speeding, or murder), and just because you don’t like them, doesn’t mean you can do what you please. Without repercussions, of course.

6. Jon Schultz says

   September 17, 2013 at 12:05 pm

   Totally agree, G , and I don’t buy those kinds of domains myself. But I think the problem of reverse domain name hijacking is rooted in the unjust principles which were established in the 1990s, and until those principles are uprooted the abuses will not be able to be stopped.

7. Peter Koning says

   September 23, 2013 at 11:55 pm

   “Why shouldn’t the same principle apply to typo domains, assuming there is a very clear and very conspicuous disclaimer on every page of the site (viewable in every major language, which wouldn’t be difficult)?”

   @Jon sometimes there is no site at all – it’s a redirect back to the brand but through a commission sucking affiliate link. I’ve seen this with 1000’s of brands – they just don’t know it yet.

   And sometimes there is a site but it’s a so called “review” site – e.g. a site that reviews hosting companies. That site owner has bought up a ton of hosting brand typo domains and sending the traffic to the review site, where lo and behold it’s plastered with affiliate links for all those lucky brands. The hosting industry is infested with this problem and those hosting companies pay out big bounties for nothing, as they’d get those customers anyway.

   Think they’ll use disclaimers? Forget it.

8. Jon Schultz says

   September 24, 2013 at 11:53 am

   Peter, you’re talking about the trademark-infringing use of domains, which I didn’t defend. I only said that no one should be punished for the mere registration of a domain – which you can now be fined $100,000 for – because there is no trademark infringement apart from use. Use includes URL forwarding and it can also include a registrar ‘s default use of customer domains.

9. Peter Koning says

   September 24, 2013 at 2:59 pm

   Ahh yes I totally agree with your point Jon.

   We should not assume that just because someone has registered a domain they are guilty. The focus should be on the intent and even more so the implementation/use of the domains.