Back-Ordering Domain Names 45
gunner800 writes: "CNN.com has a decently-researched story about SnapNames, which offers a service to monitor domain expiration. Working with several registrars, they can purchase a domain name on your behalf as soon as it becomes available. Future plans include watching for registration of typos and 'malicious derivatives' (yournamesucks.com). My first thought was 'What if someone competes with SnapNames and offers the same 'back-order' service?'"
Re:Expiring domain names (Score:1)
Re:Illegal (Score:1)
Duh (Score:1)
My first thought was 'What if someone competes with SnapNames and offers the same 'back-order' service?'
it was only a year ago.. (Score:1)
use LaTeX? want an online reference manager that
The NBA and others routinely do this already. (Score:1)
Copies of the daily report would go to me, my boss, and the NBA legal department, if any domains had become available or changed status. I was expected to register anything that became available, although on some they were dreaming: they had no more right to wizards.com for the Washington Wizards than does the Wizards of the Coast, and they are never likely to get it.
Towards the end of my stint there, it became unwieldy to maintain the script, due to deliberate outages by NSI, and changing formats. However, it is notable that some mornings, domains that had become available were already snapped up, implying that there were others using a similar scheme to grab names.
It will be impossible for SnapNames to make any promises about your ability to grab names, unless they have some sort of agreement with NSI.
-- Chris Goldman
Re:Contributory Trademark Infringement (Score:1)
Trademarks, service marks, and trade names have one particular reason for existing: to help to avoid customer confusion. We want consumers to be able to make informed market choices by having some assurance that if a product or service is labeled with an identifiable brand, then the same company that they expect from previous experiences is providing that product or service.
However, the vital point is that more than one entity can hold trade name rights to the same sequence of characters. This can happen in a number of ways. For example, the entities could hold rights in separate and non-overlapping jurisdictions, such as one holder in the U.S. and another in Canada, or one holder of a mark in California and another in Florida. Additionally, and even more importantly, two or more entities can hold rights to a mark in the same jurisdiction if they are in sufficiently different businesses that their simultaneous use of the name in the market will not cause consumer confusion. (Remember, this is the only purpose for the legal standing of the marks in the first place.) The classic example here is the mark "United".
Now, modern "intellectual property" lawyers are trying to convince everyone that we should suddenly change everything and ignore the above. Of course, they aren't presenting it that way publicly. What they say is that they are protecting the "intellectual property" and trademark rights of their clients in the new electronic sphere. However, in their actions they are making preposterous claims, and unfortunately many people seem to be accepting their position uncritically.
When you suggest that International Business Machines, the current holder of the ibm.com domain name, has the right to sue for trademark infringement anyone who registers ibm.com, despite the availability caused by, say, a lapse in the domain registration by International Business Machines, you are falling for a line. Why exactly does that IBM have this right? If there's a company in France with the registered French trademark Immeuble Baisemain that puts on a show about selling real-estate, and it's convenient for their customers to call them by a three letter acronym, why shouldn't they have as much right to the domain name as, say, International Business Machines? Can you seriously imagine that their website will confuse people into thinking that they provide computer hardware, software, and consulting services from International Business Machines? And if it somehow does, can't IBM U.S. just sue them?
Isn't it much more likely that the lawyers of the world are just stretching the law in this novel area as far as they think they can take it, simply because it is in their interest to provide their clients with the best possible outcome, justified or not?
So, while I agree with you that the business method that SnapNames is providing is ridiculous and should be superseded by a true secondary market in domain names, I find the reasoning that you use along the way to be dangerously incorrect. What's worse is that, if enough people make the sort of mistakes that you have (and there are plenty who do, you do not need to feel any shame), then the lawyers might be able to successfully argue down the road that consumer confusion will inevitably result in the use of a trademarked term in a domain name by any entity that is not the one among the set of holders of a valid registration that provisions the largest legal department.
---
Q: What is the concept of Fair Use, as you understand it?
Jack Valenti: It means that libraries or schoolteachers can play movies in their classrooms for educational purposes.
Re:Why should domains *ever* expire? (Score:1)
just my $.02
Re:duh! (Score:1)
--
Peace,
Lord Omlette
ICQ# 77863057
duh! (Score:1)
They'll sue for patent infringement!
Or maybe not, this service has the chance to be profitable, ergo, no need to make up revenue via lawsuits... Hm...
--
Peace,
Lord Omlette
ICQ# 77863057
Oh fantastic - domanin snatching away! (Score:1)
Remember when hotmail.com didn't get reregistered in time? A nice person bought it and pointed it towards the `correct' servers, maybe next time somebody will not be so lucky.
Re:nic handle hassle (Score:1)
Illegal (Score:1)
Re:duh! (Score:1)
Threads with lawyers.
My mom is not a Karma whore!
This is nothing new... (Score:1)
Mostly Harmless? (Score:1)
Monitoring domains to keep an eye on competitors and detractors isn't a big deal. The worst we'll see is an automated cease-and-desist system.
I doubt it would be very effective as a way to steal domain names though. ICANN's rules, screwy though they may be, are still in effect. You can't buy a domain name just to hold it for ransom. And most companies have copyrights or trademarks protecting their domain name. Individuals may get screwed over, but this isn't really a new phenomenon, just a faster way to do it.
I am a bit concerned by the collaboration with registrars. They give SnapNames "instant" access to registration. What do the rest of us get? If there is a substantial difference, is it fair for the registrars to sell preferencial access like that? Legal?
Re:duh! (Score:1)
Domain name expiration times? (Score:1)
not for domain theft... (Score:1)
I don't really think this is a bad service. Anyways, if someone does steal a business domain name, it could always be taken to the courts...
-mdek.net [mdek.net]
Re:slashdotsucks.org (Score:1)
$ whois slashdotsucks.org
BW whois 2.1 by Bill Weinman
Copyright 1999-2000 William E. Weinman
connecting to whois.internic.net [198.41.0.6]
connecting to whois.corenic.net [194.245.103.107]
Registrar: whois.corenic.net
Slashdotsucks.org (template COCO-17668)
cjoh@home.com
5 Spring Brook Road
Narraganset, RI 02882 US
Domain Name: slashdotsucks.org
Status: production
Admin Contact, Technical Contact, Zone Contact:
Clay Johnson (COCO-17668) cjoh@clayjohnson.org
617 555 6687
CORE Registrar: CORE-11
Record last modified: 2000-07-16 20:44:36 UTC by CORE-11
Record created: 1999-10-14 01:15:37 UTC by CORE-11
Record expires: 2001-10-13 00:00:00 UTC
Domain servers in listed order:
ns.clayjohnson.org 209.6.192.116
descartes.knowpost.com 64.14.93.134
Database last updated on 2000-12-24 18:54:35 UTC
Erm how long does it wait? (Score:1)
I Call microsoft.com! (Score:1)
Expiring domain names (Score:1)
About the principals (a start) (Score:1)
Per the SnapNames website [snapnames.com]:
Ron Wiener [snapnames.com] Co-Founder - Chairman & CEO
Raymond King [snapnames.com] Co-Founder - Executive Vice President & Director
(Click above names for photo and brief bio. See website link above for info on the other major execs)
Bill Lewis Chief Operating Officer
Len A. Bayles Vice President, Domain Name Industry Relations
Nelson Brady Vice President, Engineering
Jack Williamson, Jr. Chief Financial Officer
Roy Anderson, Jr. Vice President, Branding Industry Relations
More on Ron Weiner:
(from a speaker list [state.or.us] at a plenary session on aviation in Oregon.
Ron Wiener has twelve years of experience as a founder and CEO of high-tech and aviation-tech start-up companies. Currently he is "Chief Mechanic" at Venture Mechanics, LLC (Portland), a venture catalyst/incubator investing in early-stage technology companies. Previously, he was the founder and CEO of PrintBid.com, which he successfully sold to ImageX.com, Inc. (NASDAQ: IMGX) in December, 1999. PrintBid.com is a B2B e-commerce site for the commercial printing industry and commands an 80% market share in its arena. Combined, ImageX.com now employs 500 people as the industry leader. Prior to founding PrintBid, Wiener was founder and CEO of Distribution Sciences Corp./JetStream Catalog(Hillsboro, OR), a leading software publisher and catalog/internet distributor of over 1,000 products to the aviation industry.
Before moving to Oregon in 1991, Wiener was founder, Chairman and Sr. VP of Marketing of Azure Technology (San Jose, CA), a venture-backed manufacturer of avionics and flight simulation products, and catalog publisher in the aviation industry. Earlier he had served in sales, marketing, product management and product development roles with Central Point Software (Symantec), ICOT (American Airlines' SABRE), Orchid Technology, Eagle Computer and The Computer Factory retail chain.
Wiener was founding president in 1992 of the Oregon Young Entrepreneurs Assoc. (merged with OEF), and author of over 150 published technical, business and aviation articles, and the book Computers and Software in General Aviation (1987). He studied Electrical Engineering/Computer Science at Carnegie-Mellon University, and serves on the Advisory Board of several other Internet companies. He has been an active pilot since 1985 and operates his B36TC Bonanza out of Hillsboro, OR.
Re:slashdotsucks.org (Score:1)
who is this good for? (Score:1)
Avoid this. This company is trying to rip off both you and the person who has the domain now.
Re:Why should domains *ever* expire? (Score:1)
Squatting on a real-life piece of land isn't without its costs to society: the government must defend your land against invasion, must likely keep it connected to public utilities, and must otherwise patrol it from tresspassers and fires. If you're not conducting any commerce with your land, you're actually *costing* the government money. It's the same with domain-name services.
Re:Why should domains *ever* expire? (Score:1)
Just Imagine... (Score:1)
Yo! VIP (Score:1)
slashdotsucks.org (Score:2)
Re:Oh fantastic - domanin snatching away! (Score:2)
nic handle hassle (Score:2)
their *own* database (Score:2)
so their database called 'whois' is unique?
Says it all (Score:2)
Snapnames.com have their own "Lawyers Area".
Seriously, I suspect that this is all either
- About suing Network Solutions for not releasing expired domains
- About Network Solutions making some good money off expiring domains
I just can't be arsed to trawl through their sites to try and fugure out if NS and Snapnames are connected.OR
Re:Contributory Trademark Infringement (Score:2)
. .
Trademarks, service marks, and trade names have one particular reason for existing: to help to avoid customer confusion
I think that you will find that your perspective is a byproduct of the development in law, not such perspectives the cause of it.
In fact, if you think about it, your statement / opinion is tortological. You have to think of the sequence causal actions involved in creating a product : It is rather the vendor who decides a name for a product than a consumer who asks for a product of a certain type to be named such and such.
As I already mentioned, the legal form of trademark, derived in case law from the tort of deceipt.
US civil code, Title 15, Section 1125 cites, and its wording echoes this:
False designations of origin, false descriptions, and dilution forbidden.
(a) Civil Action
(1)Any person who Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
. .
When you say "When you suggest that International Business Machines, the current holder of the ibm.com domain name, has the right to sue for trademark infringement anyone who registers ibm.com, despite the availability caused by, say, a lapse in the domain registration by International Business Machines, you are falling for a line. I most assure you I am not.
The Federal Trademarks Act of 1995 cited the likelihood of consumer confusion as a means to protect _famous_ marques, in particular it introduced the effect of a larger legal footprint for such marques, such as IBM. Because the collateral value of being able to trade as IBM (and the cost of attaining such wide recognition) is so high , they have been afforded, along with, say Apple Computer, additional protection, against similar or confusing marques _in _any _line of business, and against anyone who seeks to represent a famous marque for their own benefit. Yes, you _could_ try to start a non - profit organisation called, shall we say Imbecilic Burocratic Morons, but obtaining someone else's means to their business would be an infringement and would create a liability for damages. By your argument you could imply that Gary Kremen, the original owner of sex.com should not have it returned. (see Wired's coverage [hotwired.com].)
In the next section of your argument, you propose some things which are easily answered : "Why exactly does that IBM have this right? If there's a company in France with the registered French trademark Immeuble Baisemain that puts on a show about selling real-estate, and it's convenient for their customers to call them by a three letter acronym, why shouldn't they have as much right to the domain name as, say, International Business Machines? Can you seriously imagine that their website will confuse people into thinking that they provide computer hardware, software, and consulting services from International Business Machines? And if it somehow does, can't IBM U.S. just sue them?"
First up, IBM has that right because they used a marque to designate products which they maintained in the marketplace. With a high degree of certainty they began using the name when _no-one _else _ did. So we have a designator for a company. By using the marque, they made it distinct _of_their_own actions. To suggest that they should not benefit from this strikes me as unfair on any business.
Now for Immeuble Baisemain (ugh), as a registered marque, you have to ask the question : who has superior rights? For this you would look at the First Use in Commerce rules, and these would, in fact apply internationally, under, originally Treaty of Paris 1846, and - more up to date, US Code Title 15, Chapter 22, SubCh III, Sec 1126, (a).
Because you have not established precedence, or first use in commerce for your example, it is moot.
In so far as you imply that no confusion would exist if I tapped in www.ibm.com and got a French realtor and could not easily find IBM's site or any of my bookmarks to that (or neither could any of IBM's customers or intranet users), I suggest that that would in fact cause a *lot* of confusion. The effect would be tantamount to a stranger taking over your shop-front on main street. Customers would still come, but for all that advertising and promotion, money and goodwill you spent over the years saying "come to 1055 Main and Second for the best firkins in town", you'd have to redo, and *still* you'd loose some business, whatever you did.
"And if it somehow does, can't IBM U.S. just sue them?" - That's the whole point, I was merely showing the basis under which they rightly could.
"Now, modern "intellectual property" lawyers are trying to convince everyone that we should suddenly change everything and ignore the above. Of course, they aren't presenting it that way publicly. What they say is that they are protecting the "intellectual property" and trademark rights of their clients in the new electronic sphere. However, in their actions they are making preposterous claims, and unfortunately many people seem to be accepting their position uncritically
I've taken your paragraph out of sequence, because you were making unsupported and unrelated assertions in aid of your surrounding argument. There is no way that current lawers could easily overturn a history of case law and precedent. That does not preclude the possibility of political lobbying for interpretations, which is a separate and contentious topic. Now, if you are a lawyer employed by a company with a tenuous claim, it may be thought expediant to put out a little propoganda, the sort of which might give rise to the formation of opinions such as yours. However, that alone does not a case make (nor a rebuttal by logical reverse of the said lawyers' corporate polemic). Preposterous claims aside (which are common in times of rapid gain or exchange of wealth (think back to Vanderbilt's day)), the best response is to learn, know and practise the known law. If that doesn't work, you can _base _ on _ that a political response. That may appear to be the course of action you want to take, and whilst I may not endorse the specifics of what you say, debate is *sorely* needed and is one major reason for my long response.
Isn't it much more likely that the lawyers of the world are just stretching the law in this novel area as far as they think they can take it, simply because it is in their interest to provide their clients with the best possible outcome, justified or not?
I'm not so sure there is any "novel idea" involved, except money making. And, dammit, if I employ someone to work for me I sure as heck want them to support my interests. (although I should hope that my interests are properly justifiable before promulgating them).
Finally, I am pleased you agree that SnapNames may not be the best thing under the sun. But I am concerned that you baldly claim I have made such elementary and potentially damaging mistakes in my previous post. Your aside "(and there are plenty who do, you do not need to feel any shame)" is a very smart rhetorical device to imply I should admit (or imply I should admit this, to readers) that I am in fact elementarily mistaken. I don't think so.
Re:Oh fantastic - domanin snatching away! (Score:2)
Snaping themselves (Score:2)
Re:Oh fantastic - domanin snatching away! (Score:2)
It won't stand up in court. If you grab a domain name with that sort of bad faith goal, you can't win in court.
I think it will come in handy for the people or organizations that wish to compete for a name but both have good faith reasons for doing so.
the big 'what if' scenario... (Score:3)
Contributory Trademark Infringement (Score:3)
. .
Its going to be interesting to guess where the bulk of SnapNames' busines is going to come from.
Now if you think that they are going to have lots of lucrative business from big corporations, I ask you this : just how many large outfits with a big web presence (yeah, Hotmail aside) are *not* on the ball wrt their domain properties and the intellectual property and trademark rights which may apply to them?
Now whilst there have been a number of instances of _registered_ trademark owners expanding their name spaces over innocent registrants of similar names, for _registered_ trademarks which are _famous_ , action against confusingly similar names by those with an established presence is an intelligable component of the law.
Registered, Federal or national trademark or not, if you have a business name or domain through which you conduct trade, you will likely have acquired common law trademark rights thru use.
Now both the Federal type registrations as well as the common law aspects of trademark have basis in "passing off" (imitating to obtain a competitor's business) and these laws themselves derive from the tort of deceit.
If a party willingly and knowingly assists another party in infringing actions, the infringed party is able to bring suit against the body or agency who made this "assist" on the basis they have made a contributory infringement.
This works in much the same way as if you send me a warez copy of Office2000 and I publish it on my website, I am also responsible by my actions to infringe the copyright of the owner. (this is a very blunt analogy, but the specific differences are a very long post).
I see some difficulties with SnapNames' modus operandi :
Firstly, the "Snap-shot" monitoring service, for which the first 20 monitored names are free (therafter $20 per 100). Now, if I am Big Corp A and I have say a few important domains, exactly how does this benefit me? This many is easy to monitor, and in any case it is no hardship to ensure renewals happen well in advance of expiry, and for long periods. SnapNames makes no money here. In fact SnapNames makes nothing out of this monitoring service until someone wants 120 names watched for status. How many people have legitimate rights over 120 names? I know some porn redirector operators own thousands, but seriously, is that really SnapNames target market? And for anyone else, is a random sample of 120 names not going to have residual rights in trademark, common law or registered, remaining with previous owners. It may be that SnapNames are making a statistical play, and I have not the data to see their justifications.
Now to their "SnapBack" service, for which I'll quote their FAQ :
7. How do I use Snap-Back to "back order" a domain name? You can use the Snap-Back service to give yourself a second chance to acquire a domain name that you would like to own but is currently registered to someone else. Please note that our service does not and never will take a domain name away from a current registrant. However, you can still sign up for Snap-Back on that name and if it ever becomes available, it gives you the best available assurance of being the first one to acquire it. In effect, you have back ordered the name in case it ever becomes available
I am not too sure the disclaimer : ". Please note that our service does not and never will take a domain name away from a current registrant. " is really adequate.
The idea is that a desirable domain falls off a registry and becomes available (other posters have already covered whether this will actually happen or not), and then SnapNames will run an automatic registration of that domain for you.
What this does not take into account, where say there are trademark rights applicable to the "fallen" domain, is that abandonment of a domain registration does not constitute abandonment of a marque. It *is* possible for large companies to slip up, but that by no means suggests that IBM would have given up any associated rights to www.IBM.com because the trademark laws say that you abandon a marque only when you stop using it, or when you stop policing it, if it is a Federal registered trademark. Now for IBM to somehow simultaneously stop using its marque on all products as it "drops" its domain, _as well_ as to choose not to file suit for return of its domain citing trademark law, isto be far fetched.
Essentially I think, even without recourse to the inner workings of trademarks, domains and related law, that SnapNames is an incitement to infringe, and the company may find itself embroiled in the middle of some nasty disputes in the future. Obviously I hope otherwise, just as I would hope that people would look and think before claiming rights on trademarks (interestingly there is very onerous code requiring possible trademark registrants to look under every stone for possible superior rights, but that is another story altogether). Having thought of that, would not making a standing application to buy a trademarked domain actually be a form of claim in itself?
It's nice that SnapNames makes a thing of being useful to lawers. If I were entrusted with maintaining a client's domain, I'd be pretty sure to make it so I *don't* need SnapNames' services. The very lack of legal actual substance on their site, together with promised "ongoing education" (like it doesn't take a few years to learn the subject, and any professional will have an eye the case law databases almost continuously) leads me to think that angle is just a smokescreen.
Uh huh (Score:3)
Why should domains *ever* expire? (Score:3)
What we need is not a system of forced-expiration but a system of monitored and centralized *sales* of unwanted domains. If people no longer want their old domains, then they could put them up for sale to the highest bidder, and people *would* do it, since they're not deriving much benefit from their unused domains any more than people derive benefit from vacant plots of land. And a system of *voluntary* conferral of deeds to domain names would be much more consistent with the libertarian ideals of property that our nation was founded on. It'd be a shame to turn our backs on the founding fathers and their universal and perpetual principles of government now, just because we happen to be in the "new millennium" -- their ideas apply now as much as ever.
Re:Why should domains *ever* expire? (Score:5)
There is a flaw with your analogy: you aren't actually buying the domain name. You are paying a company to tell people where you want the domain to point to, over and over again.
A better analogy would be: it's like paying somebody who owns a plot of land on the corner of a street to put up a signpost telling everyone where you live.
Re:Why should domains *ever* expire? (Score:5)
In a sense you are, and you are not. What makes this confusing is you are buying an exclusive use of a domain on renewable terms with a period of contract defined therein. Actual ownership of a domain is subject to interpretaion of what a domain constitutes. IMO, absolute ownership would not be clear until you have rights such that neither a registrar nor any root server owner nor anyone else may alter or interfere with the domain name you registered and corresponding DNS entries, in perpetuity.
If you would like to register a domain wherein the contract with the registrar confers you explicit title in ownership (albeit, once again the derivative rights from that are unclear and subject to interpretation) take a look at Gandi.net [gandi.net] who have Terms and conditions in contract [gandi.net] which appear very favourable to the registrant.
A more philosophical way to look at this is ask yourself, if you are a home owner, whether you own that house outright, or if, as is usual, the deeds are owned by your mortgage lender and you will be paying them interest on a loan for any number of years to come. Many aspects of control derive from lend or lease variations, see Marx for some good rants.
hmm.... (Score:5)
________