Domain name owners should keep up with this, just in case...
Written: Jul 16 '00
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Product Rating:
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Pros: An essential site if you think you might ever be involved in a domain dispute
Cons: Tends to a dry, technical and legalistic style.
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| dtobias's Full Review: Archived Web Services Reviews |
This is a review of the official site governing domain name dispute resolution, hosted by the non-profit organization ICANN (Internet Corporation for Assigned Names and Numbers) at:
http://www.icann.org/udrp/udrp.htm
It's not the usual sort of site that people review here. There are no flashy graphics, no games and gimmicks, and it doesn't pay you to surf it, write opinions about it, or refer friends to it. But if you are a domain name or trademark owner, it is a site you really ought to be familiar with. For domain name owners, understanding it might help you keep your domain when some overzealous trademark owner challenges it. For trademark owners, it'll help you know how to challenge a cybersquatter who may be using your name for exploitative purposes.
Until last year, most of the familiar top level domains were registered only through the monopoly registrar, Network Solutions. Their original rule was "first come, first served," meaning whoever registered a name first always got to keep it. But after a few actual and threatened lawsuits from trademark owners claiming infringement by a domain name, they changed it to a "challenge" policy where domains got put on hold if somebody showed ownership of a trademark to the name. This was widely criticized as unfair, since there are many instances in which two or more people might have valid rights to a name, and in such cases the "first come, first served" policy is the most reasonable way to decide who gets it. Under the Network Solutions policy, the usual result of any dispute was that nobody got to use the domain, as it was put on hold. This didn't satisfy anybody.
But it's not the policy any more. Last year, ICANN put a new system of competing registrars in place, and along with this, adopted a dispute resolution policy in which somebody claiming trademark rights over a name can file a challenge which is heard by an arbitrator. Arbitration costs are borne by the challenger, who must prove that he/she/they own trademark rights (registered or common-law) to the name, that the challenged party doesn't have any rights of his/her/their own, and the domain name was registered and used in bad faith (e.g., to attempt to profit from the similarity to somebody else's name by drawing traffic to another Web site, or to attempt to sell the name for a profit, rather than to make a legitimate non-infringing use of it).
This is a much better system than the old Network Solutions policy, because many of the disputes get resolved in a logical and definitive way rather than getting on indefinite hold. In cases of blatant cybersquatting, the domains are transferred to the rightful trademark owner; in cases of excessive overreach of trademark enforcement, they're rejected and the domain owner gets to keep his name (without having to incur defense costs, as no lawyers or court appearances are needed). But there can still be some problems with the trickier cases, where delicate distinctions need to be made, and haven't always (in my opinion) come down on the right side.
Anybody can read the decisions for themselves and decide whether they're fair or not, as they are all required to be posted to the Web upon completion. Follow the links on the ICANN domain dispute page to "List of Proceedings" (sorted by date or by domain name involved). They can be interesting to read through. Perhaps the sorts of people who like things like "Court TV," "The People's Court," and "Judge Judy," would like this as yet another chance to view the dirty laundry of others' disputes as a spectator sport. These cases, however, aren't pre-screened by a TV producer to find the juiciest ones, so you'll have to wade through a lot of boring technical issues before stumbling on an interesting dispute. Also, the arbitrators don't have Judge Judy's attitude (probably a good thing).
You'll find that most of them are open-and-shut cybersquatting cases, with exploitative people registering domains with all sorts of variations of other company and site names, either to draw traffic to their own site (often a pornographic site that pops up those highly infuriating extra browser windows when you try to leave it; don't worry, reading the case decisions won't invoke such pop-up routines) or to try to sell the name for big bucks. Many of them don't even try to defend their case. In the case of a non-defense, the judgment still isn't automatically for the complainant, as the arbitrator must still be satisfied that the complainant's case has been proven, but without a defense the complaint's assertions will generally be assumed to be true -- so, unless the complainant has an exceedingly weak case or was really incompetent in preparing the complaint, he'll probably win.
The more interesting ones were the contested cases. Some of them involved legitimate competing uses, or generic words that somebody was claiming a bogus trademark over, and they were generally decided in favor of the domain owner. But there were a few cases where I think the arbitrators overreached in granting trademark rights. They were cases where somebody had a noncommercial site with commentary, news, or criticism of some person, company, or product, and used a domain name containing the name of what was being commented on, with disclaimers on the site saying that it was not an official site of the entity being commented on. In all such cases that I've seen so far, the arbitrators have ordered those domains transferred to the trademark owner, which I think goes further than the rights the trademark owner would actually have in a real court (where trademark rights are mostly limited to commercial uses, and some degree of fair use is allowed for commentary and criticism).
Anyway, if you have a domain name, you should keep up with this stuff so you won't be caught unprepared if somebody tries to challenge your name.
Recommended:
Yes
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dtobias
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Member: Daniel Tobias
Location: Boca Raton, FL
Reviews written: 168
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About Me:
A programmer and Internet developer who's been a "computer geek" for over 20 years now.
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