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The Internet

New Domain Arbitration Rules Get Results 106

Ed Adams wrote to us from the New York Law Journal which has the results of one of the first domain disputes resolved under the new arbitration procedures of the Internet Corporation for Assigned Names and Numbers (ICANN). In addition to the results, the actual decision is online as well.
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New Domain Arbitration Rules Get Results

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  • Folks are already speculating on service/trade marks. There's a large industry out there that exists to suggest names of products or business units to corporations. They get the service marks for the invented names, and they probably buy the domain name also.
  • .. If this is continued to be allowed, alot of people will be getting there domain names stolen from people with "trademarks". This case appaled me. Look at the domain in question, Musicweb.com. How can you claim that you own the trademark and it should be given to you. Its a music site on the web, thus Music Web. You cant trademark stuff like that. That would be like Ford sueing me because I bought Car.com or CarDealer.com or something of the sort. Or a domain like SoftwareLinks.com. The domain name should of never been to arbitration in the first place, and certainly should not of been given to the person who filed the complaint. I can just see it now. This is as silly as the company who tried to steal earth.com because they claimed they owned the trademark to Earth. Whatever.
  • Actually, Amazon.com had to settle out of court with a lesbian bookstore in Minneapolis to use the domain. I would guess some money changed hands. The new way to keep domain names is to have more money than the other guy.
  • We spend alot of time complaining about how lamely DNS is being run. What if we could regulate DNS through a open system.
    I believe it's possible to completely overhaul DNS, even against the will of government or corprate regulation, without breaking any laws.
    All we need is a sufficent number of people with dedicated internet connections. Setting up a DNS server is easy. If it doesn't accept any other servers as authoritative it is in effect a top level domain name server. If enough other people accept that machine as authoritative we've created a second DNS network independant of the original one.
    If enough people select machines from the DNS2 as their primary name servers any information in this system will suplant that in the original DNS.
    No longer would we be subject to arbitrary legislation that serves the best intrest of whoever has the most money.
    If anyone's interested in working on this send me an email. I can provide web space and a DNS.
  • If they would start using DNS the way it was designed to be used, none of this would be a problem.

    I mean, giving away second level domains directly? It's mad, a license for chaos (what we have now...). It's like a land grab. No end user should have a domain higher than a 3rd or 4th level domain.

    The .com, .org, .net organisational domains should all have at least one additional layer of subdomains underneath which describe the area that a company or organisation is interested in. ford.land.vehicles.com
    microsoft.os.software.com
    microsoft.application.software.com
    fred.plumbers.co.uk
    linux.free.software.org

    The existing DNS architecture is essentially flat with all the *.com entries, and that is not how it was designed to be used. DNS scales fine, the way it's being abused at the moment doesn't scale.

    Create new top level domains, stop handing out .com, .net etc addresses and codify second/third level domain creation. Delegate the handing out of 3rd/4th level domains and make sure that the people you delegate it to strictly adhere to the purpose of that particular domain.

  • I would argue that a single entity (person, business, whatever), can only register up to 3 domains without question. After the 3rd, additional domains are registered based on a case-by-case business.

    And you thought Network Solutions was slow already? It would take a significant amount of time to do an effective investigation of the legitimacy of a domain application - imagine a one-month waiting period for a domain application! If you think I'm exaggerating, you haven't tried applying for a secure server certificate from VeriSign - and all they're doing is validating that you are actually who you say you are, not that you have a legitimate reason for applying. If you try to do it any quicker, you're looking at (a)ineffective investigation (which pretty much invalidates the whole point of doing it) and/or (b)higher domain prices to cover the extra personnel required by this policy.

    Don't get me wrong - I'm not saying that the current system works, but in this case, the cure you are suggesting would be worse than the disease.
    ________________________

  • I always thought that if you were temporarily dead, the time gets deducted off of your allowance for when you're permanently dead. E.g. if your copyright is in effect 75 years (IIRC) after your death, then if you die for three days, live a while, then die again, you only get 74 years, 362 days (give or take).

    Of course, in the case of this particular author, the copyright rules were amended several times during His lifetime (and didn't exist at all for much of it). Also due to His multi-jurisdictional nature, consistent application of the law is a bit...difficult.

    Obviously this hasn't come up in case law yet because most people who are dead for more than a minute or two tend to stay dead, and nobody is going to launch a lengthy and expensive legal feud over a one-time two-or-three-minute delay when they could just go grab a coffee and the problem will go away by itself. ;-)
  • I don't think he was inadequate in his research.

    Sounds to me that he knew what he was doing and planned from the start to take the issue to ICANN and get the domain from the squatter. Presumably this was cheaper than just paying him off.
    --
  • There are quite a few companies whose official corporate name is "FooFoo.com" or "Amazon.com". Now does Amazon have rights to the name "Amazon.com", or do the Amazonians?

    However, with the coming TLD expansion, I doubt Amazon.com would have automatic rights over Amazon.co, Amazon.store or Amazon.web. Another employment act for lawyers!
    --
  • Not that unusual. When a business goes national, it's not uncommon that have to payoff a small business so that they have rights the name in that state. The problem is that the web is implicity national, so it's easier to step on someone's toes.

    This all reminds me of the story about McDonald's going around the country and threating to sue every "MacDonald's Auto Repair and Towing" shop. (I don't think they ever followed through with their threat.) Or Apple Computer being sued by Apple Records and McIntosh Amplifiers.

    --
  • Yes, I wish the US domain would have caught on also. It probally would have if we didn't have such asinine rules regarding them. Why would i want a name like xyz.pike.pa.us or whatever it is.

    Dumb.
  • There was no indication in the ruling (although there appeared to be an assumption) that the same person listed as the contact also offered it for auction.

    This could well have been a case where one person registered it with the intent of speculating and/or squatting, or maybe even had a legitimate intent to use that fell through, but entered an incorrect contact handle when registering it (and may not have noticed). The person who did get listed could not really legally act as the owner since he was not the registrant. By his refusal to transfer the domain, he avoided liability to the registrant, who may have had a legitimate use for the domain (the contact may not have known the registrant was offering it for auction).

  • What if I register microsoftsucks.com? Should MS be able to sue me for violating their trademark?

    Probably not. In the US, parody and satire are generally afforded 1st Amendment protection. Also, the use of the Microsoft name in this case does not imply a misrepresentation on your part -- you are not claiming to be Microsoft, a reasonable person would assume your site is not Microsoft's, and you are not attempting to hijack customers of Microsoft by claiming their trademark as your own.

    --

  • I agree that a company has a right to use its trademark in the commercial domain.

    But I don't see why that implies a right to use its trademark in the non-commercial domain, especially where its trademark is a word with other legitimate owners, such as McDonalds or MP3.

  • Given that the apparent domain name owner didn't contest the transfer, 'a matter of weeks' seems incredibly slow.
  • Anyone know what happened to the peta.org domain name? Did the real People for the Ethical Treatment of Animals succeed in keeping the original domain owner of peta.org (People Eating Tasty Animals) off the web for this long or did the guy just give up?
  • So IBM shows NSI a type writen leter "from" you, postmarked your city, offering the domain name for sale. OR they show an email that "you" sent to them offering the site for sale.

    If you know anything about the internet [and I am assuming you do, and that you just did not think of this angle, because you have an honest mind ;)] then you will know how easy it is to forge an email. You would then be left in the possition of proving that you did NOT send the email, a nearly impossible task. As to the paper form, anyone can send the leter, from your town, using your return address, and then YOU have to prove that you did not do it. That is why the system you proposed is not a good one. It only works in a totaly lawfull society. Not to say that all big busness is corrupt, but if a mid level buricrat saves his company even a half a million dollers in legal fees, then he will very probably be looking forward to a significant promotion. Not that all busness are crooks, but it only takes one crooked man or woman to realy ruin your day!
  • These sort of disputes should take into account exactly who got the name first and whether they want too use their domain for anything remotely having any thing to do with what their name implies.

    There should be some sort of mechanism in place to stop frivolous forms of this from even becoming and issue. for example we all remember the whatshappenin.com/quepasa.com thing.

    Here as with many other things, common sense plays a large factor and any body dumb enough to let it get past their secratary should be drawn and quartered and be hung from the ceiling and beaten to a pulp with raw carrots.
  • The people that use these top-level domains for purposes other than commerce, networks, and non-profit organizations, respectively, should also be required not to use them.

    Chris Hagar
  • An individual may find it difficult to fight a corporation in a court of law, but domain name disputes are not settled that way.

    According to the article:

    In a matter of weeks, Mr. Ellenbogen won the on-line rights to his company name, without having to confront the costly and time-consuming jurisdictional and discovery issues that inevitably arise in trademark litigation.

    Also according to the article, the case would probably have taken two years to settle in the courts.

    To me, this sounds promising for individuals without vast resources to fight an extended legal battle, quite possibly in a foreign country.

    Furthermore:

    To prevail, Mr. Ellenbogen needed to establish that he held the trademark to musicweb.com, that the registrant has no legitimate interest in the name, and that the registrant registered and uses the name in bad faith.

    The two last critera are the interesting ones. If you are actively using a domain name, it will probably be quite difficult to show that you have no legitimate interest or that you are acting in bad faith.

    Without the arbitration rules your position would be far worse. You would be infringing on a trademark (possibly knowingly), you would face litigation, and you would lose. This way, at least you have a fighting chance.

  • I have just one question: Why, if you are an individual, would you register a .com address instead of a .org?

    I think all of these domain name dispute issues would be easy to resolve if people only registered .org's (like they are supposed to), ISP's only registered .net's (like they are supposed to) and companies registered .com's)

    -sirket
  • You'll be fine. The 17 years are way over. Besides, there was prior art.
  • There is a case of a Non US company that has the same name as a US company but is in a different business and owns the domain name. Will the arbitrators always rule in favour of the US company?
  • This list makes fascinating reading if you care about the subject. It appears to be extremely important to get the right arbitration organization to hear your case. If you are arbitrated by WIPO, you get careful, clued-in consideration of the facts. English words have their normal meanings. The small entrepreneur has a chance. And bullshit gets detected.

    On the other hand, if you are judged by NAF, it is all naked power. You are in Lawyerland. You know who wins every case in Lawyerland.
  • Problem is, Mike Whatshisname didn't put up a defense. If you want to profit from the formalities of domain name registration, you have to be willing to put up with the formalities of defending them in arbitration.
  • Well, this is why it's good to have a dispute resolution process that sidesteps the legal system. If you settle intellectual property disputes in court, then Disney wins, you lose. It's refreshing to read some of the arbitration proceedings; they show wise-asses getting it in the neck; and sometimes a sincere little guy just trying to get ahead gets his break.
  • Here's the stipulations of trouble.. from paragraph 4a of their 'charter'/policy, and EACH of these things must take place:

    (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,

    (ii) that the respondent has no legitimate interests in respect of the domain name; and,

    (iii) the domain name has been registered and used in bad faith.


    Obviously this is a very judgemental thing. I hope that the 'judges' don't get into the hands of the wrong people, as this is a touchy issue for a lot of us.

    Mike Roberto
    - roberto@soul.apk.net
    -- AOL IM: MicroBerto
  • What i wonder is if any other jackasses besides myself actually clicked that link to see if it existed :)

    And no, i won't tell you if it existed or what's on it! You must cLICK yourself! hahaha

    Mike Roberto
    - roberto@soul.apk.net
    -- AOL IM: MicroBerto
  • While we're at it, let's abolish all copyrights, patents and trademarks. And any other method of protecting intellectual property.

    I have no sympathy for people trying to extort money for trademarks that have already been registered. But in this case a person realized the name "Musicweb" would have some value. Three years later someone else agreed and gave their company that name. Rather than buying that piece of intellectual propery, they went through a quasi-judicial process to seize it.

    Why should I empathize with someone stupid enough to register a service mark before confirming that the .com domain was available? Why should he have a right to a name that someone else identified as valuable before him?

    Certainly, place limits on the length of time a domain may be held without being used. But arbitrary seizure is a dangerous precedent for 'net law.

  • Well... the solution to all this is obvious!

    Yes, as many people keep suggesting, we setup a personal TLD and everyone registers using their names.

    The "Who gets Smith?" problem could easily be solved by creating a "surname registry service". This would ensure that each person's name is completely unique and owned by them.

    Of course, to increase the namespace (so we can all have meaningful names), we would need to make our surnaming structure hierarchical. This could either be though the use of a number of "top level surnames", or arranging it geographically. For example, I could be Lionfire.smith or, since I'm in Australia, Lionfire.au

    This might lead to some troubles as more and more people register their surnames -- since the population of the planet is increasing, and all. And some people might start registering multiple names, selling them to the highest bidder. So we'll have to setup a "surname arbitration procedure"... but I think it'll all be worth it in the end.

    Yep... domain registration problems are going to be a thing of the past... :)

    ...MoO!
  • Does it matter if the trademark was retrieved before or after the registration of the domain name? Let's say you registered thiscoolname.com and a company likes the name too (knowingly or not) and decides to use this name as a product line...
  • Is it me or does anyone else here think the whole dispute policy is lame? IMHO we should just limit people to a small number of domains per person or organization, maybe 2 or 3 max and make it first come first serve. If companies didnt know they needed a domain 3 years ago it is not my fault. I was forced to file trademark for my domain just to protect it from these corperate weenies who thing they somehow have more rights to a name then we do. For me this wasnt a major expense but it was a pain in the ass and really uncalled for. I dont care if coca cola is a long existing company. They originally fought for cococola.com which is not there company name. If they really wanted there company name then they should have filed cococolacompany.com which is.

    Now you have the corperate lawyers going "Well if you dont like consult the law makers." IMHO if they lawmakers cant be bothered to answer there email in person then they are not the best people to deal with technical situations. The counter argument to this is that they get a few hundred emails a day. So do I and I take the time to answer them when they have valid questions. The system has failed, its dead, just no one has bothered to bury it or tell the repulicans.

  • A lot of the fears people have about these rulings seem to be addressed by the bad faith section of the rules. Understood simply, you seem to have to have had bad faith in registering the domain.

    What interests me is that they seem to be rather loosely interpreting bad faith in this context and it could get pretty crazy when there are domain names that are very general.

    For instance, I live in the Netherlands and I own a .com domain that represents a very general, very common word in Dutch-- the word that means "people". I originally bought it to develop a project that was shelved. I'm still holding on to the domain, because I still hope to develop the project at some later date. Now, I'm sure that there are Dutch businesses that have this word as a company name who could demonstrate that I am not currently using this domain. They might argue that I'm holding it to sell. Would this constitute bad faith?

    Or I'll use a fictional example. Let's say that someone manages to buy a very desirable domain consisting of a normal word. They want to sell it, but they realize that hanging a for sale sign on it would be tantamount to admitting bad faith. So they hang their bookmarks off the page, or a list of links. They put some link exchange banners on it and leave it there. How is the court going to rule on this? Right now, domain squatters are still stupid enough to hang for sale signs, but as they get more clever how is ICANN going to decide the difference between a real tiny .com and a site that's for sale in bad faith?

    We need more TLDs, this is going to get *complicated*.

  • True, but what's the point? One squatter for another? http://www.musicweb.com [musicweb.com] doesn't go anywhere.

    If your going to take something away from somebody, do it to use it.

  • seems to me that greed is going to tear the online community apart. it isn't like it used to be anymore. alas.
  • Ok fine I can't sell my domain to companyX but if companyX invites me to a meeting under contract and gives me 50000 bux I'll free up the domain name so they can register it. Every system is flawed
  • I don't know about anybody else, but quite frankly this scares the dickens out of me! If they can take previously registered domain names, what comes next? The whole etoy fiasco would be nothing compared to what this could lead to.

    flirzan

  • It seems to say a lot about trademarks there... but is all cybersquatting trademark-related? Remember a few months ago when they started allowing domain names longer than 22 characters? From the news stories [cnet.com], it sounded like many people locked themselves in their basement that day and registered hundreds of generic domains -- anything they could think of between 23 and 63 characters in length. Their intention was clearly to get rich -- but not off of trademarks. Unfortunately, these rules don't seem to discourage this sort of behaviour. So if I want to set up a legitimate service under the name workerscompensation.com, I'm still going to have to pay some loser a million dollars for it, even though all they ever did with the site is put up a "This domain is for sale" notice. (Note: there is no such notice at workerscompensation.com; this was just an example.)

    I've seen a lot of those "this domain is for sale" notices. Entire companies seem to be based around domain squatting. What about generic domain names that redirect you to other completely unrelated sites? (One day I was looking for information on printers, so I typed in printers.com [printers.com], just for fun. No, it's not porn.)
  • Seriously, though, opening up a personal TLD would lead to just as many disputes, unless you're lucky and have a rare surname

    I've got a plenty rare surname (here in England I only know of two other families with the name) - nevertheless, the .com, .org, .net and .co.uk domains have all long gone (to separate people, all of whom are bona fide surname-holders according to whois). But i recently found out that it's common as dirt in New England.

    This leads nicely to an important snag with using trademarks as a criterion in the arbitration. Certainly there are some trademarks, with near-global scope, but I would imagine that the vast majority of TM's in any given country apply only to that country, and (corollary) that there must be a fairly large number of strings which represent multiple trademarks across multiple countries.

    Now i appreciate that the ICANN process has safeguards so that a corp. can't just walk over the domain owner without good reason, but is there any clear description of what happens if a new US company decides to use a name that's been a registered trademark in, say, Italy for the last 30 years and is a household name in that country. Does the italian country have any ICANN-recognised claim on the .com?

    Of course, this would all be much easier if .us had ever caught on.

    TomV

  • I don't see how this arbiter can just take the domain that someone else owns and give it to someone else. Are they saying that if he had not advertised the domain for sale, and was actually using for a purpose (lets say, for distributing legal MP3s), would they have let him keep it? Even though it was the exact name of a company that wanted it? Or did they make him turn it over simply because it was the same name as another company?
  • The case number is "D00-0001". I suspect that the "00" is the last two digits of the year, and "0001" is a sequence number in the year. If so: 1) Why build a Y2.1K bug? These early decisions are, well, historic. They may very well outlast us. 2) I'm cynical enough to think that 9999 decisions per year might not be enough.

    Maybe it's in hexadecimal......Then at least it's up to Y2.(FF)K compliant!
  • "so they pay me for it, they then report to NSI that they paid me for it"

    They don't need to pay you for it. All they need to do is produce evidence that you either (a) offered it to them for a payment, or (b) offered to give it back to the NSI for a payment. Then the NSI takes it off you and IBM takes it. Suppose that you offer it to them using some anonymous means: they pay you money, you return the domain to NSI, IBM complains to the FBI, the FBI takes the money from you and gives it back to IBM. Since you know that there is no prospect of extracting money from IBM for the domain, you don't bother to register unless you have some us for it yourself.

    I expect that you'll object there is not much prospect of the FBI finding you in, for instance Russia, so I'll retreat and say while the system I have proposed is certainly not flawless, it is better than the current system. The reason for this is that it would be harder for squatters to extract money from people who have some use for a domain, which will mean less profits for squatters, and so less squatting. Which makes everyone better off (except perhaps squatters).
  • I can't help thinking that the problem of domain squatting could easily be solved by simply not allowing domains to be transferred between owners. If this system was introduced, then people not using domains would have no incentive to hang on to them and arbitration would simply be between rival legitimate uses of a domain.
  • "There's no victim in the sale of a domain name, therefore there's no reason to make a federal law prohibiting the sale of them."

    The sale of domains does cause harm, namely legitimate users of domain names having to pay squatters to get an appropriate domain name. This is a good reason to make a law. Whether this is a sufficient reason to make a federal law I don't know - I am not an expert on federal law - so for the sake of argument I'll concede that such a law is not feasible.

    Even so, the conclusion of my argument still holds: while the system I have proposed is certainly not flawless, it is better than the current system because it is harder for squatters to extract money from people who have some use for a domain. (I.e. you can't to sell or give up a domain name for money in any way that will produce evidence of doing so. Furthermore, few potential buyers would risk giving money in response to an anonymous offer to free a domain, but if you devise some non-anonymous way of making an offer, the potential buyer will have no need to pay you to give up the domain since they will have evidence of you offering to give it up for payment. Note that, precisely how it is made harder does not matter as long as it is harder) Because it is harder for squatters to extract payments, there will be less profits for squatters, and so less squatting. Which makes everyone, except perhaps squatters, better off.

    My conclusion is that the system I am proposing is better than the current system.
  • "If you couldn't sell a domain name to someone, you could offer them a 1,000 year contract to point the domain name to an IP address of their choice."

    That's a good point. But suppose offering of such contracts were illegal, i.e. the domain name would returned to the provider if such a contract were offered.
  • Ok, so i read through the whole long rambleing judjement with ends finding that the original domain holder was acting in 'bad faith' and awarded the name to the plaintiff. Ignoring for the moment that the original domain holder had registered the name well prior to the plaintiff registering their service mark, I noticed that the whole process only involved contact from the original domain holder in two, early in the process, emails. In both emails the guy is quoted as stating that the registration is in error, and he's been trying to get his name off of it for over a year. I just started a non-profit organization dedicated to exploring new and novel uses for the slash and the dot keys on keyboards. I have my new service mark for 'slashdot' and have filed a petition to have 'slashdot.org' which appears to have been taken by a cyber-squatter, turned over to me. Precident says that Rob is acting in bad faith? Both of this guy's email requests specifically ask that they remove him from this domain, then they refuse, and move the whole thing through an moderation process to a judgement of 'bad faith,' against him. Why pages of legal mumbo jumbo instead of just fixing the error for the defendant, telling the plaintiff that there is no longer a problem, and go out for beers?
  • AMEN BROTHER! We need something more than those .com or .net or .org specifications. That opens the door for individuals to register a name that a corporation could use. Thus the legal struggle that leaves the individual on the down side. And I like your specification of .sum, I personally like latten. But anyway, we need to expand DNS as we know it.
  • I own the domain dentrassi.co.uk. It's named after a reference to the Hitch-Hiker's Guide to the Galaxy. I have yet to be sued by The Digital Village, Douglas Adams's interactive media company, for breach for copyright, trademark or whatever.

    There are two options here:

    1. TDV don't care about the fact I'm using what is one of their trademarks. My page contains no disclaimers that I have nothing to do with them, and I can't see that I'm going to put any up in the near future.

    2. TDV don't know I'm using their trademark- unlikely, I'd have thought. But, nevertheless possible. This begs the question that will they sue once they know I have this domain? Probably not. There has been an independent website at http://www.vogon.com for as long as I can remember. This is by rights a trademark of *two* seperate conpanies- TDV and Vogon International. Neither of which seem to have done much about it.

    So, the some companies seem to have an indifferent stand toward domain owners they *could* sue.

    I think in the end it's just not worth the bother for them- let's hope this climate continues...

    --
  • I wrote about this recently on trademark thread,but will do so again as I think this case is important. I'm eInfoworld.com. A month ago, IDG, parent company of Infoworld, sent me a trademark infringement/dilution notice. Because I do not compete with them, because I am not text identical and because of the bad faith component of the trademark law and the sheer number of other "infoworlds" (74 in total) it was obvious I was not causing trademark dilution, especially when infoworld.org , a text identical name, was not contacted by IDG, nor was e-infoworld. A friend and I spent a week researching trademark law and put up a website rebuttal to IDG. We suggested a link to them was all that was necessary. Within 2 days they responded and agreed to withdraw the claim and asked us to link to them.

    It's an amazing story of a corporate legal dept of a huge technology/news/information conglomerate - (they own Dummies, Industry Standard, PCWorld, etc) reacting swiftly and correctly to a situation. The whole story can be found on http://www.einfoworld.com I would hope this would become a role model for how people and corporations can work things out, no litigation, no money spent. If IDG can understand that I posed no threat to them, certainly others can also begin to understand that it is possible to find simple, straightforward solutions to situations, especially as the world of trademark law meets new territory.
  • Could this possibly help OpenSSH with their dispute? (Remember the story posted about it a short while ago here on /.)

    Probably not, since the offender is in a different country, and would have to agree to the arbitration, obviously. :-)

  • Don't be difficult.

    For those of you at work who are curious, but obivously can't visit a URL like "throbbingniggercock.com", it's just an "Under Construction" graphic. No porn, no big whoop.

    Don't visit it from work anyway. It could change by the time you read this, and even if not, you'd have a hard time explaining why a page at that URL showed up in the company cache server. ;-)

    "Oh, it was on Slashdot... no, I wasn't reading Slashdot! It must have been from some spam... yeah, that's the ticket!"

  • you are asking some of the right questions, but in trademark law registration date is less important than date of first use in commerce. I checked the registration and it was in 1998, but still, that's the date you need to use.

    The question of whether these new rules are going to be bogus or not is what constitutes "valid" use of your domain. Here's an example: if all your life, you wanted to be called "Spike" but nobody calls you Spike because you are a nebbish, but you finally get the chance, because in cyberspace nobody knows you are a nebbish, and you register spike.com. So, you put some photos of you and your goldfish up there: it's a lame website because you are a nebbish. Now, Spike Records company gets created, after you registered your domain. After operating as Spice.com for awhile, they come to you to buy Spike.com. You think you might sell it because you've been incredibly unsuccessful at getting people to call you Spike. So you say, "how much?"

    Suddenly, you could be thrust into the realm of the cybersquatter. Most people I know would say you have a legitimate claim to that domain, but these rules do not protect you.

    I used to be a good Slashdot citizen, but I am getting sick of stupid moderation. Be warned, Slashdot, fix the moderation (stupid people have to lose their privileges even if they are well-meaning) or I'm going over to the dark side. What's this comment doing here? moderation baiting! Because what I wrote above is better than most of what's in this forum, I'm daring you to piss me off by not moderating this up.

  • "Mike Pearson" plainly stated on at least two occasions that he did NOT want the domain, that he'd been trying to get his name out of whois...

    So, can someone please tell me why the WTO decided to use expensive arbitration procedures to handle this? It'd seem that NSI could have dealt with this one on its own. This was a horrid waste of time and money.
  • As another posted gave a URL to the various cases under ICANN's wing, I read through some of them, and am pleased with a lot of the decisions. See specifically "SIXNET.COM" and "TELAXIS.COM", both which were registered either before the name was trademarked, or there were international boundaries involved. In both cases, ICANN ruled in favor of the current holder instead of transferring ownership.

    Hopefully they will keep it up.

  • The case number is "D00-0001". I suspect that the "00" is the last two digits of the year, and "0001" is a sequence number in the year. If so:

    1) Why build a Y2.1K bug? These early decisions are, well, historic. They may very well outlast us.

    2) I'm cynical enough to think that 9999 decisions per year might not be enough.
  • looks like mp3.com handed over audiograbber.com already. the news release seems to be data 15mar00, so this is pretty recent news for me ( it's still 14mar00 here! )

    check it out [audiograbber.com]

    --
    CraigL->Thx();
  • It is very common for people to be entering new registrations, and while trying to enter their own contact handle, goof and transpose a digit or letter and accidentally "give" it to someone else.

    I've had to fix things like this for customers a few times already. It happens and it's not uncommon.

    If such a thing does happen to a domain, correct entry of working servers can cause the web site to actually work despite the wrong contact. Further, the real "owner" may be totally unaware the error even exists. Since his name is not on it, it could be hard to track him down.

    Imagine yourself in a position where someone registers a domain and accidentally makes YOU the contact for it. Then when someone who has a trademark approaches you and says they want the domain, you just sign the papers and hand it over to them. Then it turns out the registrant also had a trademark or other legitimate use, and now sues YOU for damages.

    This is probably not much different that laws on lost property. If you give the property to someone else, you could be accused of transferring property that is not yours. If you sign your name to papers to do the transfer (as would be the case for a domain) then the situation is even worse.
  • <i>"Why pages of legal mumbo jumbo instead of just fixing the error for the defendant, telling the plaintiff that there is no longer a problem, and go out for beers?"</i>
    <p>
    There is an answer to that... because companies only operate in their own interest at the expense of customers, and somehow the legal systems and governments are interested in "companies" rather than the ideas of "right" and "wrong".

    Feel free to consider how stupid the MD of Easyspace is in twice refusing a simple refund of a "service" I didn't even realise I didn't want, and phoning me up to be abusive late on a Saturday night: an appropriate link <a href="http://www.glutinous.custard.org/sleasyspace /">is here</a>.
  • (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

    Actually, based on this and the other criteria for applicability, it sounds like Jackie Franck (author of AudioGrabber [com-us.net]) has a pretty good case for getting the AudioGrabber.com [slashdot.org] domain. This is definitely one instance that I'd like to see happen.
  • Second, stricter enforcement of the domain name policy, based on what entity a registrant represents. A for-profit corporation can only register .com, a non-profit organization only gets .org, and most importantly an individual can only get .sum if they're using the site for non-commercial purposes.

    Ah, yes, a return to basics. But that brings up a very interesting problem: who enforces such divisions? The last time I checked (which I will admit was well over a year ago), NSI was only verifying .edu applications, which could not be processed through their website anyway. They had, in effect, given up on trying to enforce the original intentions of the domain names.

    A tragedy, to be sure, but done for two very good reasons: 1)Rake in three times the money by removing the restrictions; 2)The world started registering ten thousand web sites each day (probably an exaggeration, but close).

    If one were truly interested in reestablishing the strict divisions between TLDs, I can only think of one good solution: only allow a registrar to register a single TLD. BobsBigDomains gets to register .com; connect-u-net.net gets to register .net; and so on and so forth.

    The personal TLD is needed so incredibly badly. But I don't see it happening any time soon -- too many McDonald's in the world. (That was a joke, son.) Seriously, though, opening up a personal TLD would lead to just as many disputes, unless you're lucky and have a rare surname. Which Smith gets to register the smith.sum domain? The first one to click on the submit button? Capitalistic, yes, but really not much better than what we already have.

    Aargh. I think my head just exploded.

  • First, I think there needs to be a domain specifically for personal Websites. In past posts I've suggested ".sum" which is Latin for "I am," fits into three letters, and is gramatically correct ("Millennium.sum" translates to "I am Millennium" if I'm not mistaken).

    Hasn't this idea been knocked around for a long time? And for a lot more than just "Websites" as well. I think ".nom" was the first suggestion I saw, as in "nom de plume" or "nom de guerre," to mean a domain for an individual.

  • That's a good point. But suppose offering of such contracts were illegal, i.e. the domain name would returned to the provider if such a contract were offered.

    Even so, let's say I register ibm.com and IBM decides they want it (we'll ignore the fact that they already have it), so they pay me for it, they then report to NSI that they paid me for it, NSI takes it away from me and IBM registers it. If IBM wasn't allowed to register it because they were the ones that tried to buy it, they'd just get someone else to pay for it.
  • Suppose that you offer it to them using some anonymous means: they pay you money, you return the domain to NSI, IBM complains to the FBI, the FBI takes the money from you and gives it back to IBM.

    That would make it a legal issue, which there is no reason for it to be. I had assumed you were referring to some sort of self-regulation, similar to the way the NCAA makes sure that their members don't pay athletes, the NCAA can take action against the colleges, but can't involve the FBI since it's not illegal. There's no victim in the sale of a domain name, therefore there's no reason to make a federal law prohibiting the sale of them.
  • hrmpf.. typical.. the guy elbows someone out of their rightful domainname, and elbows is what his name translates to from dutch (and quite possibly german)

    //rdj
  • This whole rage against cybersquatting is getting out of hand. Stop and think for a moment what this means to our web, and to its users (me and you).

    What we saw in this example was a private citizen who registered a domain name (which is legal), tried to sell it (which is legal), and had it forcibly seized by someone who decided he wanted the name three years after it was registered (which, amazingly, is perfectly legal!).

    Could your domain be seized by anybody with enough money to buy big bad lawyers? Say I register a domain name. We'll say it's dermarlboro.com (which is, in actuality, not registered at all). I use it as my personal web page. I occasionally change the graphics and look of the site, and I post interesting stories and pictures I've run across and whatnot. But mostly its useless. It's just my little toy page.

    Now say somebody decides to start up DerMarlboro Widget Company, and they go to register dermarlboro.com, and lo and behold, its registered by me. They have a look at my site, realize its owned by just some guy, and decide I'll be an easy chump to bully. So they send me a cease-n-desist, threated to sue me, yadda yadda yadda. I, of course, protest. It's my domain. I've had it for three years. I'm using it. And I don't want to get rid of it.

    They decide to have it seized with ICANNs approval. They accuse me of cybersquatting because I'm obviously not running a business that uses the name. I don't own any trademarks. DerMarlboro Widget Company has registered DerMarlboro as a trademark, so they should get the name.

    Could this happen? Is this good arbitration? This could allow anycompany to arbitrarily just pick out a name owned by a private citizen and (with Uncle Sam nodding in approval) just take it.

    I think real cybersquatters are boils on the neck of the internet. I really do. But we need to be very careful of this kind of seizure of personal property. Cybersquatting is a grusome annoyance, but lets not cut off our nose to spite our face.
  • The Bible was originally in Hebrew and Greek. For many centuries, the Catholic church held a monopoly on translations of the bible, only endorsing a Latin version, so that the common people would only be able to hear the bible's interpretation by One True Catholic Faith (or something), instead of that of a few start-ups that actually weren't obsessed about controlling everyone.
  • While I certainly don't condone cybersquatting, I found it very interesting that the WIPO concluded that attempting to sell a domain name is tantamount to using the name in bad faith.

    The rules for transfer of a domain name dictate that the current owner must have both registered and have used the name in bad faith.

    The musicweb domain name was never used, only listed for sale. Still, the panel found that this constituted bad faith use.

    I disagree with this finding, although I should add that this is a nutty rule to begin with: Theoretically, this would allow one to maintain ownership of a service-mark domain name as long as they didn't attempt to sellit. Perhaps an interesting strategy for a competitor.

    dp

  • "This is an example of the new rules working."

    How so? A domain was registered in 1995. In 1998, an individual did inadequate research and registered a service mark by the same name. The latecomer has successfully seized the prior registration.

    By the same logic, E-Toys should be able to shut down E-Toy.

    First come, first serve. Musicweb did a grossly inadequate background check; it's their problem, it should not be a problem for the person with the foresight to realize that Musicweb would later be a valuable piece of intellectual property.

  • It will be interesting to see how this quasi judicial board will handle domain disputes such as bbc.org. Will large multinational corporations use this to foreibly take away a domain name from a smaller site because there may be a similarity in their respective names?

    The first judgement was a no-brainer. The cyber squatter was guilty as sin. Hell, he didnt even show.

    Its the up and coming cases which will truly show how this will unfold.

    Jailbrekr
  • In general, I agree. A unique trademark name should be protected. This does, however, raise a few questions. What if I register microsoftsucks.com? Should MS be able to sue me for violating their trademark?

    The issue with webmusic.com gives me pause, however. I'm not sure if it's a precedent setting decision, since the defendent didn't even respond and denied any claim to the name. If he'd fought back, the decision might have gone the other way. Still, the domain name was registered in '95. The trademark was registered in '98. Does this mean that you not only have to register your domain name but trademark it as well to prevent some "trademark squatter" from taking away your domain?

  • I don't like this idea at all. I agree that something must be done about cybersquatting, but does it provide enough security for individuals?

    For instance my homepage is om http://www.dobbelaere.com (my last name). What if some evil company from hell calls himself also "dobbelaere" or registers my name as his trademark? Indivisduals can't fight like companies you know....

    Also... let's say you create a special interest webpage in high-school and get you domainname for it. You have been studying the web closely and you have a very good name... let's say something like corvette.com (you create a non-profit website about the car). You know someone has the trademark, but he (the company) doesn't care about the internet yet. (corvette.com being random choice here)Then the company gets web-aware and want to secure his trademark. What will be the outcome....

  • One thing that worries me is the ability of big business to take domain names that have been out there for a while. If i come up with "slashdot" clothing, and it gets popular..do i get to sue Roblimo, et al. for rights to the domain name?? We have to be very mindful of exactly how and why these rules are applied. Additionally - what about .org vs .com or .net - do these rules apply the same. Does a company like sony have the right to take away an "organizations" web site? Just something to run through your gray matter.


    -FluX
    -------------------------
    Your Ad Here!
    -------------------------
  • The one question this brings up, however, is what defines cybersquatting in general? If it's solely the purpose of the name...then sites like Antionline, Freshmeat, and other well known sites could be at risk (these are just top-of-the-head examples) Because their name doesn't implicitly give any indication of what they're all about. I do, however, agree that these must be handled on a case by case basis. I could easily see this turn in to a sort of McDonalds coffee spill type of situation where everybody is suing everybody else for domain rights that they feel they should have.

    We should also examine timliness of situations regarding sites on the web. Companies that have been around for aeons shouldn't necessarily have the right to "bully" others off of domains they purchased from Internic quite some time ago just because they had a "wait and see" attitude towards the internet and e-commerce in general. This is definitely a grey area.


    -FluX
    -------------------------
    Your Ad Here!
    -------------------------
  • The facts of the case is that the guy listed at the administrative contact said that it wasn't his domain and he had nothing to do with it. That by itself should have been sufficient to reassign the domain to the complainant. However, one the wheels had been set in motion, they were forced to consider a lot of pointless information and consider it poorly.

    1.: "The domain name is identical to the service mark registered and used by complainant, MUSICWEB"

    No, musicweb.com is not identical to MUSICWEB.

    2.: The decision goes to great lengths to establish "bad faith use" eventually settling on the claim that the domain was offered for sale on a website.

    Gee, if I want to take over a website, all I have to do is produce a printout of a "webpage" that lists the disputed domainname as one for sale. I can make one up in a few minutes.

    This decision does not give me any confidence in the arbitration procedures. I have been running a mailing list for several years. I have recently registered a .org to host the list. I don't want someone with commercial interests sometime down the line to suggest that my domain
    name infringes on their trademark or servicemark which they may or may not have been using longer than I. I don't see any basis for me to protect my legitimate interests with this decision especially if the complainant wishes to claim that the domain has been offered for sale.

    Anomalous: inconsistent with or deviating from what is usual, normal, or expected
  • I think many or the anarchaic slashdotters might be agains tthis new development.

    I see it as a good thing if implemented properly (any regulation sucks if mis-implemented)

    It makes perfect sense that a company who holds a trademark has a right to the domain of that trademark. However much I might dislike Microsoft; they do have a rigfht to their name.

    Where there might be more argument is whether or not a company should have a trademark on common names (like the Apple trademark causing that orchard guy above all those problems). I mean I don't think computer.com should be allowed to be trademarked or anything like that.

    This may be old news to many but for some companies Turkmenistan is a popular TLD (.tm) like sony.tm

  • I think all this furor over cybersquatting is ridiculous. A domain name is just a heuristic, a convenient way to designate a network address. If you really want to find a site, you don't start guessing *.com names and seeing if they lead somewhere—you enter some keywords into a search engine, and then you bookmark them when you find them!

    I agree that cybersquatting is a problem. But what it should be indicating to us is not that we need the government to step in and protect some arbitrary naming system which happens to collide with commercial trademarks and what-have-you, but rather that the technology, i.e., the global namespace system, is faulty (or obsolete)!

    We should learn a lesson from the financial regulatory community. It used to be that when a bank failed, the government would step in and save it. Then we discovered that banks saved that way would just fail again, because they were not competently managed. So now we let banks fail so that new, better managed banks can emerge, and serve the general populace better and more efficiently.

    The same principle of natural selection should hold for technology. If some technology proves inadequate, let it fail! Don't perpetuate it with regulations or laws. We all know the "fail early, fail fast" motto.

  • by Brian Knotts ( 855 ) <bknotts&cascadeaccess,com> on Wednesday March 15, 2000 @04:35AM (#1201947)
    I look at it this way...at least he's managed to keep the PETA wackos (I mean, c'mon...they're against owning pets!) *off* the web for four years.

    That really brings up another issue. Most domain disputes are over money; this one is over politics. How should political situations like this be handled? The same as others? Or should there be different considerations?

    I would think that the fact that he has a web site, and is using it to present a particular point of view related to the name should be sufficient for him to keep it.

    New XFMail home page [slappy.org]

    /bin/tcsh: Try it; you'll like it.

  • Yeah, yeah...the guy was a squatter, and we all hate squatters, but...

    Complainant contends that respondent has registered as a domain name a mark which is identical to the service mark registered and used by complainant, that respondent has no rights or legitimate interests in respect to the domain name at issue, and that respondent has registered and is using the domain name at issue in bad faith.

    Note, however:

    The complainant has provided evidence of the registration of the following marks: 1. Service Mark - MUSICWEB, for computer online retail services in the field of recorded music and music information in Int. Class 42, registered for a term of 10 years from September 15, 1998. Complaint, Exhibit B. The Service Mark claims a first use of June 10, 1998. Id. Complainant uses the mark, MUSICWEB, for the sale of recorded music, discs, tapes and other electronic recording devices. Complaint 8.

    and... The Whois record of the domain MUSICWEB was created on January 10, 1995 and last updated on January 5, 1997.

    So, musicweb.com was created over three years before this guy registered his service mark.

    Does that mean that any domains held by speculators are up for grabs? I mean, all you have to do is register a service mark that is the same as the root name of a domain, complain to ICANN, and bingo...the domain is yours!

    I dunno...but something just doesn't seem right about this.

    Perhaps speculators will simply start registering service marks.

    I'd really like to see about 1000 new non-geographical TLDs to put an end to all this nonsense, once and for all.

    New XFMail home page [slappy.org]

    /bin/tcsh: Try it; you'll like it.

  • by The Rizz ( 1319 ) on Tuesday March 14, 2000 @11:06PM (#1201949)
    The fackt of the matter is that Mike wouldn't hand the domain over, buth when the Arb. came in he suddenly denied having anything to do with the domain.

    Actually, as I read it, he really didn't have anything to do with the domain.
    It wasn't his.
    Then, someone comes along asking Mr. Pearson to hand it over -- but if he doesn't own it, can he legally hand it over?
    Mr. Pearson may have just been refusing to hand it over because he was worried the proper owners would sue him, or accuse him of "hacking" the domain name away from them.
    Personally, I wouldn't have just handed it over to the first person who called, either... if it's not mine, I have no right to give/sell it to someone else.

  • by Millennium ( 2451 ) on Tuesday March 14, 2000 @07:38PM (#1201950) Homepage
    The whole business of domain-name squatting needs to be stopped. The question is how best to do it.

    First, I think there needs to be a domain specifically for personal Websites. In past posts I've suggested ".sum" which is Latin for "I am," fits into three letters, and is gramatically correct ("Millennium.sum" translates to "I am Millennium" if I'm not mistaken).

    Second, stricter enforcement of the domain name policy, based on what entity a registrant represents. A for-profit corporation can only register .com, a non-profit organization only gets .org, and most importantly an individual can only get .sum if they're using the site for non-commercial purposes.

    Third, a simple rule to decide trademark disputes on domain names. If the trademark existed before the domain name was registered, the domain goes to the trademark owner. But if the domain name had been registered and in use before the trademark was ever filed with the applicable offices, then the domain name owner keeps it. The rationale behind that is that if the name had been in use before the trademark was ever applied for, then the trademark itself should be invalid; it is the real attempt at identity theft (case in point: the E-Toys vs. etoy fight; etoy had that name and domain long before E-Toys had ever been created, much less before the E-Toys trademark had been filed).

    On a side note, it's scary to see the WIPO having the power to do this (then again, the WIPO itself is a scary thing). But if it's getting done, then at least it's getting done.
  • I can't help thinking that the problem of domain squatting could easily be solved by simply not allowing domains to be transferred between owners.

    If you couldn't sell a domain name to someone, you could offer them a 1,000 year contract to point the domain name to an IP address of their choice.
  • by Carnage4Life ( 106069 ) on Tuesday March 14, 2000 @07:07PM (#1201952) Homepage Journal
    One thing that worries me is the ability of big business to take domain names that have been out there for a while. If i come up with "slashdot" clothing, and it gets popular

    This does not matter because the ICANN policy requires trademark infringement as one of three rules that must all be in existence before any arbitration can take place. Not only must there be trademark infringement but the domain in dispute must also be used in bad faith (defined below) and the owner must have no legitimate interests in respect of the domain.

    From the ICANN domain name resolution policy [icann.org]:
    • .
    • 4a) Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that
      (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
      (ii) you have no rights or legitimate interests in respect of the domain name; and
      (iii) your domain name has been registered and is being used in bad faith.
      In the administrative proceeding, the complainant must prove that each of these three elements are present.

      4b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
      (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
      (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
      (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
      (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

  • by hypergeek ( 125182 ) on Tuesday March 14, 2000 @06:56PM (#1201953)
    I don't know about anybody else, but quite frankly this scares the dickens out of me! If they can take previously registered domain names, what comes next? The whole etoy fiasco would be nothing compared to what this could lead to.

    No, no, no, no, no!

    This is an example of the new rules working.

    The new rules make it harder to take away a domain name, by requiring that domain name owners have no legitimate reason for having their domain name, and that they are deliberately using it in bad faith.

    "The whole etoy fiasco" would not have happened under these new rules.

    --

  • by Syn.Terra ( 96398 ) on Tuesday March 14, 2000 @07:02PM (#1201954) Homepage Journal

    I own the domain www.aevum.net, and "aevum" is Latin for "life".

    I hope God doesn't use ICANN to make me forefit my domain. After all, the Bible was originally in Latin, and God did *ahem* invent life.

    (it's late, i'm working, and i needed a goof break.)


    ------------
  • by Masem ( 1171 ) on Tuesday March 14, 2000 @06:57PM (#1201955)
    The owner of the name "musicweb.com" was not using it in the interest of "music on the web", and thus is basically cybersquatting. Makes sense.

    KEy thing is that cases like this need to be treated on a case-by-case basis. There are many things that going into the name of a domain that are not necessarily readily apparent. Let's say I took the name "coffeehaus.com" as a site for amateur poetry distribution. Given that many coffee houses in the area here are cultural centers, this name is reasonable. If, afterwards, a company that calls itself "Coffeehaus Coffees", which sells coffee, and tries to take the domain name from the poetry site, there's no justification for it, because the poetry site is using the name "coffeehaus" in good faith. As long as ICANN makes decisions like this, they should work out.

    That said, given how big business want ICANN to open up more TLDs only if they have the opportunity to get trademarked names first, I would argue that registering a domain name automatically gives you the copyright on that name assuming that there is no copyright in existance for your service. In the example above "coffeehaus" would automatically become a copyright for the owners of that domain, such that if Coffeehaus coffees wanted to try to dispute it, it comes down to when coffeehaus.com was registered vs when "Coffeehaus Coffees" was trademarks. Of course, I see some problems with this, and given the stance of big businesses this will never go through, but it should be a goal.

    And I still stand by my belief that the DNS system is totally messed up and needs a total overhaul that includes limitations on what TLD you can register in among other things. Also, I would argue that a single entity (person, business, whatever), can only register up to 3 domains without question. After the 3rd, additional domains are registered based on a case-by-case business. Reasons for getting 4 or more domain names should NOT include trying to cover all the TLDs with your name, or blocking spelling mistakes, or whatnot. There are legit reasons, but implementing limits on the number of TLDs will help purge the overly expanded namespace, force businesses to use the 3rd (or 4th) component of the site's address (the machine name) to subdivide their web presence instead of spreading thin, and to educate users on what the various parts of a domain name are and represent, as to use it to their advantage when surfing. This would also kill cybersquatters dead and make cases like the above unnecessary.

    end rant :-P

  • by Jim Tyre ( 100017 ) on Tuesday March 14, 2000 @06:57PM (#1201956) Homepage
    There have been many domain name matters which have been resolved. ICANN has them all here [icann.org], listed by domain name, or here [icann.org], by proceeding number, or even here [icann.org], by commencement date.

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