There was an article published on AmericanBar.org from June that dealt with one lawyer’s interpretation of domain investing. Tamara Kurtzman titled her article The Continued Hijacking and Ransoming of the Domain Name System by Modern-Day Corporate Privateers.
Ms. Kurtzman coined the phrase “Anticipatory Cybersquatting”
From the article:
Anticipatory cybersquatting is the practice of registering domain names with minimal present value in the hopes that these names will become desirable, and therefore increasingly valuable, in the future. Specifically, anticipatory cybersquatters register domains that have no connection with the registrant for the sole purpose of selling them at a later stage to companies that have a legitimate connection to that domain, and at a much higher price than for which it was originally purchased. The result is that new businesses often find that many, if not all, of the domain names that correspond to their trademarks, products, or services have already been registered by one of these domain-name privateers.
Andrew at DNW.com found the article a couple days ago and commented. Andrew rightfully questioned some of the content from the article.
He wrote:
I’m not sure what timeframe Kurtzman is considering, but I don’t find panels to be “increasingly broadening their interpretations.” It is true that some rogue panelists have tried to bend the plain language of UDRP to find in favor of Complainants, but this practice seems to have significantly diminished, especially since the release of the WIPO 3.0 update in 2017.
Andrew is correct and there is a reason for the confusion. The article the American Bar published in June of 2019 was actually a reprint, most publications make some note there was an update or modification to an article. This article did not make any such note, but it was originally published by Ms.Kurtzman in June of 2016, that’s why some of the statements don’t make sense.
In speaking with an expert when it comes to the UDRP, Gerald M. Levine of IPLegalCorner.com, Gerald told me,
“Anticipatory cybersquatting” is a made-up theory; there is no such claim under either UDRP or U.S. trademark law. It’s an idea that isn’t going anywhere.”
By my experience looking at domain names… i think cybersquatting and/or trade violations when down even with an increase of domains registration. But, i am not an expert. Guys like John Berryhill and Levine knows more about it than myself. But, i personally see less over time. I don’t recommend to someone to register one domain containing a trademark. I also really don’t suggest to buy one on the second hand market. You might lose big $.
Almost every word has at least one trademark associated with it. The issue is not with owning names where the words are used in trademarks, trademark infringement applies when you use the name containing the mark in the same class of goods or services in the regions where the registered or common law trademarks are in use. Trademarks afford a company a monopoly over a mark like the way a patent allows a monopoly of an invention.
Unfortunately wealthy companies can leverage legal frameworks for good or for worse to take a name from its registrant, who would typically not have the funds to counter the abuse in a fair and proportional way.
ACPA claims are a little different from infringement claims, as the ACPA doesn’t require the plaintiff to prove likelihood of confusion as to the source of the goods or services. The ACPA only requires the plaintiff to show that the defendant “registers, traffics in, or uses” the domain name, has “bad faith intent to profit”, and that the domain name is “identical or confusingly similar to the [plaintiff’s] mark” (or dilutive, in the case of famous marks).
This is why a registration of a domain name can be an ACPA violation without being used to compete with the rights holder.
Jonathan
The “ptb” are really pursuing the “pre-crime” made famous in Minority Report as a thing now, so. In fact they’ve even outsourced it for the US…
I would suggest that a counter to the stupid “anticipatory cybersquatting” claim, “retroactive scumbaggery” or “reverse anticipatory domain hijacking.”
So, I research a potential emerging technology, register 10-20 names, hold them for 10-20 years. The emerging technology becomes world changing and ultra-viable, and then, the names are then not rightfully mine? I would then, 10-20 years later, have to give up the names because those wanting to steal the names didn’t have the vision or were too lazy to do register the names?
insane logic
lawyer speak
typical of the domain name business
sickening
“anticipatory cybersquatting?”
Sounds like scumbag lawyers planning a heist, a theft, an “anticipatory reverse domain hijacking” heist!
The domain name business just keeps getting better and better.
If they are going to be that creative against a group of legitimate business people I still say we can be creative too and a good response could be class action/defamation, were it not for the source being the ABA and the attorney-to-attorney respect code. Maybe we could get some lawyers to break the ranks. Let’s go for $1 billion in damages and everyone who joins by the end of the year gets in. Let’s have Berkens lead the charge along with Zak Muscovitch.
“In speaking with an expert when it comes to the UDRP, Gerald M. Levine of IPLegalCorner.com, Gerald told me,
“Anticipatory cybersquatting” is a made-up theory; there is no such claim under either UDRP or U.S. trademark law. It’s an idea that isn’t going anywhere.””
I am guessing that Gerald M. Levine knows what he is talking about and if he does, there is nothing to worry about.
To date, I am also guessing, there has been no loses to any domain name holder, so damages are non-existent and so a class action in a non-starter.
For me, the issue of the sentiment in the term “anticipatory cybersquatting.”
The crafting of the term rings of sour grapes, perhaps expressed by those that have successfully developed technologies that are now viable and experiencing huge growth, making any exact-match domains now potentially very valuable.
Bottom line, reverse domain hijacking is the goal. A subject that the domain King has addressed many times and has championed, moving forward.
Case: http://hallofshame.com
Direct quote from Rick’s site “Reverse Domain Name Hijacking is when an person or entity tries to steal a domain name from the rightful and legal owner by claiming Trademark Infringement and/or Bad Faith among other fabrications in order to get a governing panel to award them the domain name.”
This “anticipatory cybersquatting” is more of the same issue that Rick Schwartz has championed. Just another
shade.