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The Internet

Court Rules Domain Names Are Property 122

Mikey writes "An InternetNews article about a decision by a Virginia federal court declaring domain names are property" Why is the courts allowed to decide this? Isn't it really Al Gore's job? (rimshot)
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Court Rules Domain Names Are Property

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  • by Anonymous Coward
    Actually, tradmark research is probably something that should be done before registering a domain name. The only problem with it is that it cost so much damn money - even if it is at a state (in the US) level! I can't even begin to imagine what it would cost for a worldwide search - since that is what it would mean!

    Sure - now I can go get a $25.00/month domain through my company of choice, but I will have to pay $50,000 to research it!

    Big Business is taking over our fucking network!

    BTW - why didn't Umbra simply ask the guy for the domain? I mean, look - if I had the domain pepsi.com, I would have to know that pepsi was a trademarked item - you would have to be stupid not to know! But umbra.com? Who the fuck are they? Perhaps if I followed soccer I would know, but I don't.

    Maybe I will start a company called Slashdot...
  • by Anonymous Coward

    If I read this correct, the court, by allowing this company to go after the domains as *real* property without regard to violating the company's intellectual or trademark property rights who lost the suit, assigns a higher value to property rights to become more important, ie; tangible property rights as of greater import than intangible propery rights.

    This means that a company that seeks a domain from a smaller entity would have to pay for it as real property, rather than use the courts to try and force the party to surrender it. They have just handed us a very powerful argument in protecting our domain names in that these companies cannot use intellectual or trademark laws to lay claim to something where another party also has a legitimate claim to a trade name. It's real property, NOT trademark property.

  • Posted by SingleGuy:

    I totaly agree with this.
    In my opinion the toplevel domains are completely misused. I'm coming from the Netherlands (.nl) and our domain registry organisation does not want to register all domain names. They exclude lots of them. To be able to still use that name dutch companies move to other top level domains like .net .com or .org.
    This makes it very difficult to see where a company is from.
    I prefer a country toplevel domain use like they do in the UK.
    .co.uk is used as the .com domain but now in the uk.
    Every country should use a simular structure. Yes, even the US should do that.
    .co.us, .net.us, .co.nl, .gov.nl, etc.
    Also the original meaning of the old toplevel domains like .com, .net and .org should be restored. So normal companies should go to .com and not to any other toplevel except .co.us
  • Posted by SingleGuy:

    But there is nothing wrong with that. They don't have to do that.
  • ...would be what happened to toysrgus.com [toysrgus.com].


    Who am I?
    Why am here?
    Where is the chocolate?
  • I still don't understand why we americans have to take .com .net .org (etc), when other countries use .ca .uk .de (etc). Why not use .us?


    Who am I?
    Why am here?
    Where is the chocolate?
  • JosefK writes, "Let's use a fictional illustration..."

    Let's use a real one: the fact that the Gateway 2000 computer company has used this kind of trademark-litigation terrorism with respect to uses of the word "gateway" or Holstein cows is why I do not even consider them when making computer purchases. (Their trademarks at the time all included the number; they did/do not claim "gateway" by itself as an official trade mark.)

    fwiw

  • Of course, if your ethernet goes out, there's not much point in looking up your IP address. While there ARE other reasons for querying a DNS, those are in the minority.

  • The trademark aspect is an interesting one. What if the Canadian company holds trademarks on the other domain names? If Umbro sells off the names, cound the canadian co then sue the buyer for tradmark infringment? (perhaps under Canadian law?) It looks way too much like a can of worms to me. The court shouldn't have opened it.

  • I like it! I see no reason it can't start out like ml.org did. Any Linux box can have a search statement in resolv.conf to alias it for us, (or even better, configure named.conf to do the right thing). The Mozilla hack can take care of Windows, and Mac has it's own equivilant of resolv.conf.

    I wonder if the whole thing could be legally structured into a 'telephone directory' like the yellow pages. Furthermore, reserve some part of the namespace for non-commercial use (with a legally binding agreement to that effect) in order to remove personal web pages from the relm of trademark law (as trademark law only applies to commercial use). It seems that if a TLD such as .net or .org was LEGALLY restricted from commercial use, much of the litigation over trademark issues would be stopped before they even start. The non-commercial agreement would (i think) provide evidence against infringement.

    NOTE: I am not a lawyer, nor do I play one on TV. The above paragraph is not intended to be legal advice. Some restrictions apply, void where prohibited, black is white, up is down, war is peace, chocolate rations this week have been increased from 14 grams to 9 grams.

  • I think the problem may be more cost than ability. For many small businesses, redundant internet connections are simply too expensive. For the home user, they are definatly too expensive. As for your first paragraph, I agree.
  • I think the problem may be more cost than ability. For many small businesses, redundant internet connections are simply too expensive. For the home user, they are definatly too expensive.

    As for your first paragraph, I agree.

  • That is certainly true. In that case, I would mirror the primary servers and set the secondary DNS to point to them.

  • ajax.org was a good example of exactly where companies do not have any business messing around. .org should be left to simple first come, first serve, even if the registrant has no trademark and someone else with a tracemark wants the domain. COMpanies belong on .com. Unfortunately, .net has been so perverted from its original use (gateway/connectivity/backbone sites) that it's virtually another .com. Only .org still maintains a different "feel", i.e., pbs.org, and of course .edu.
  • How does this work? It was my understanding that only the IP was used in a domain's name server mappings, not the hostname (which was how I understood round-robin DNS worked).

    How can you get a single IP (as in the only listed DNS server for a particular domain) to map to multiple DNS servers?

    Or did I misunderstand what you meant by round-robin DNS servers?
  • I was thinking he meant it was acceptable nowadays to only list a single IP and have that IP work with multiple physical DNS servers, but I guess if you use a form of IP aliasing to map 2 (or 3 or more) IP's to the same machine, InterNIC thinks you're playing fair and using valid secondary DNS servers when in fact you're using the one.

    Obviously having only a single DNS server (or multiple DNS servers located on the same network) basically defeats the purpose of having secondary DNS servers to begin with. If your ethernet goes out or you have network problems, poof, no DNS (no web traffic, no e-mail, no nothing).

    To be honest, I'd be perfectly happy if the InterNIC not only enforced having secondary DNS servers, but required those secondary servers to each be located on different networks. I imagine the cost of keeping track of this information would be prohibitive, though.
  • True, but if an organization has any decent size to it, it may have multiple locations and multiple networks. If you put all of the DNS servers in one place, and that one local connection has problems, the rest of your organization is effectively unreachable from the outside (this includes e-mail).
  • I ordinarily just laugh at and disregard AC posts that start off with personal attacks/name-calling, but there was a bit of a point in your message so I'll address it. In the future, a polite rational message will get you a hell of a lot further than one like this, and it comes with the added benefit of not requiring you to hide your identity!

    If you are having difficulties maintaining a single link to the Internet, you need to certainly get your upstream provider to provide secondary DNS services for you. You may also want to invest in a new engineering staff.

    If you are talking to an ISP and the person you are talking to has no concept of secondary DNS, you are talking to the wrong person. You need to develop better communication skills. If the most clueful person at that ISP has no idea what secondary DNS is, you desperately need to find a new ISP to deal with. This is a fundamental of DNS that every single network person at an ISP should be familiar with.

    What problems do a single DNS server impose upon you? Why do you even need to run your own DNS server to begin with? Can't your upstream provider do it for you if it's as difficult/painful as you make it sound? It's even possible to have you set up a DNS server locally that just feeds DNS information to your ISP's DNS servers, which are themselves the primary and authoritative servers for your domain/network. Have you considered any of this?

    Just because you made bad decisions and lack the communication skills and/or technical competancy to perform the basics of network and system administration doesn't mean those levels of skill and competancy are good. If you can't do it, your ISP should be able to. If they can't, you should find a new ISP. Nobody should be *forced* to manage their own DNS servers and networks if they can't. The fees ISP's charge for this service should be negligible (and many/most do it for free as part of your connection).
  • I remember a piece on CBS News years ago about a 100-year-old business named "McBagel's" that went out of business because they couldn't afford the legal costs of a lawsuit filed against them by McDonald's (illegal use of the "Mc" trademark.)

    Even if you have used the name before another person has, there are financial pressures too.
  • What the fsck does this mean? If I don't pay my domain name renwal fee can I still keep the domain name. Am I just renting it (Internic still owns all domain names?)
    How is it possible for someone to criminally acquire my domain name in the first place.
    "This is a stickup your domain name or your life!"
  • No, what happened to toysrgus.com should have been a frivolous suit. Instead, because a major corporation was doing the suing, it became a legitimate suit ... in the eyes of the court.
  • The other good thing to come of this is that it cuts the legs out from under Network Solutions:

    The court basically ruled that (1) domain names are property, and (2) NSI doesn't own them -- the registrants own them. The annual fee to NSI is just to have physical property associated with IP addresses. Consequently, NSI can't take my domain name away from me (although the courts can through the normal legal process). More importantly, NSI no longer owns the data in their database that associates domain names (that they don't own) with IP addresses (that they don't own), not that they legally owned that data in the first place...

  • Well, more like $2000 for a US trademark (and we're all that counts, right? :-)) but yes, that's the conclusion I've come to - do a trademark search first if you're really going to use it in business. As noted elsewhere, a search of the US Trademarks is definitely advised. I was recently sued by Porsche for infringement for reserving porscheservice.com for a client. Well hell, that's what they do; I was just trying to be descriptive, not infringe on Porsche AG. They had 3 years to take such an obvious name and didn't. And no, they didn't even bother to contact me so I could at least get credit for handing it over voluntarily. They won't even let you use the logo or a likeness of their cars to link to your own cars! That's just Dumb Business, but it turns out they've been doing the same thing for years in print.

    As far as Big Business taking over the network, well, it was started by Big Academia and Big Science and Big Military, so that should be no surprise.
  • Your former domain www.*tacobell*.com had EVERYTHING to do with the Taco Bell restaurant. Just because the content has nothing to do with it doesn't excuse you from the fact that the domain you registered is unmistakeably similar to the trademarked name of a restaurant.

    Things like Ajax.org I can understand, there are several ways to get "Ajax" has a domain name. Even apple.org or something seems like an OK name, because it's ambigious enough not to conflict with trademarks.

    On the other hand, Microsoft.org or Intel.net and the like are clear attempts to cash in on a brand name. What on earth did you use the tacobell.com domain for? Was it even related to tacos or bells?

    I'm sorry, but I don't have a lot of respect for those who register trademarked names knowing full well that the names are trademarked and without any pertinent, related use to the domain name.

    To me, that's domain name speculation, and I don't hold much truck with speculators. In fact, I believe speculation should be either made illegal or forbidden in the Internic licenses. It's a scourge on the whole system that people can hoard domain names and charge outrageous prices for them.

    Domain names are a limited resource, because they are limited to the number of words and phrases pertinent to the content of the site (for the most part) multiplied by the number of TLDs. As TLDs will tend to remain few in number, and the main language of domain registration is English, domain names are quite limited and they should be protected resources.

    None of this "they had no legal claims," because they did. They owned the trademark to the Taco Bell name AND had a pertinent use for the domain name. By your own admittance (unless you talked about Tacos or Bells or both) you had no trademark for the name nor did you have pertinent content.

    This ruling would most likely have been against you had it been earlier. After all, the case was against someone who'd registered umbro.com and was brought by, you guessed it, Umbro. The someone lost not only the domain name, but also all of his domain names in order to pay the $25,000 legal bills. I hope this becomes a lesson to speculators.

    On the other hand, I hope that the registrars remain in a position of "leasing," because it gives them more control over the system. Now to get them to destroy speculators.

  • by jelwell ( 2152 ) on Wednesday March 24, 1999 @11:19AM (#1964355)
    Doesn't Internic actually own all the domain names? If not, why is it that I have to pay them every two yeats? If this is my property, it apparently has a limited life under my ownership. But, really I don't see why this is any different than renting a building to conduct business in. If that building is owned by Internic and Microsoft sues me they can't take my building - i'm leasing the building from internic. They can however force me to close down business. But the building is still Internic's. Is there a procedure for transferring ownership of leased property to victor's for litigation?

    Joseph Elwell.
  • The judge is confused, because he thinks that:
    1. because a registration of a domain name is tied to a single party, and is exclusive, and
    2. because you can buy or sell a domain name, and
    3. because the registrar is in one country,
    4. that a domain name is property in that country.
    The confusion is turning a generic name registration into a U.S. name registration. This is a really bad precedent to set. I hope it will be appealed, but fear the victim cannot afford to do so.
    -russ
  • In two words? virtual hosting... two eth0:x
    interfaces, two ips, one dns server, one box, but
    the world sees it as 2 dns servers. Or 3 or 4 or 5
    or 200. :)
  • The result is that the victor owns the lease (not the building) if the lease has tangible value.

    Since the victor now owns the lease, he (or she) can do whatever the lease allows (sub-let, change
    where the nameservers are) and the original lease holder is S-O-O-L. Effectively, the victor
    now owns the domain name as long a he (or she) lives up to the obligations of the original lease.

    BTW, the internic doesn't own anything. There is nothing wrong with setting up your own root server
    and doing exactly what NIC is doing. The only problem you'll have is that nobody is pointing
    to your root server so you'd be selling a useless service. This is 100% analogous to the 1-800
    dispute of a few years ago about portable 1-800 numbers (e.g., changing from ATT to MCI and
    keeping your same 1-800 number). I expect a similar solution...
  • This "name" argument is older than you think...

    A little computer-centric aren't we? ;^)

    The more things change, the more they remain the same.
  • RULE 1: The courts can seize property you own to cover a garnishment.
    RULE 2: They aren't allowed to garnish things for punitive reasons.

    In the case mentioned, the judge awarded court fees to the plaintif. The plaintif didn't have
    any other assets, so they seized the other domain names they owned. It is unclear (to me) if they
    could legally sell the seized names. If this is the case, they could not legally garnish them.

    That's why it's academic.

    Another poster mentioned that this could give license for lawyers to become squatters for
    domain names seized from other squatters. I don't think this is the case because it is not obvious
    it is legal to sell them which means they are effectively worthless.

    Example: You sue me and win. Say my only possession in the world is 1 bag of medical MJ
    (legal in this state). You can't take it because it has no economic value (although it has street
    value). You aren't allowed to take it from me just to make me suffer either. You lose.
  • by slew ( 2918 ) on Wednesday March 24, 1999 @12:02PM (#1964361)
    Ruling that a domain name is property is academic. In practical situations (i.e., non-squatter
    situations), you cannot force someone to relinquish a name as a result of a garnishment
    court action.

    For example, if your name is OJ simpson and you owe say $10M to someone as a result of a court
    action, and you have a 1 person company OJinc which has a domain name which is
    your personal property. The court can make you sell your domain name, but according to current
    trademark regulations, if the 1 person company OJinc is still using the name in commerce, no one
    could legally buy the name and use it. Current garnishment laws do not allow punitive effect for
    garnishment actions (you can't take something from someone to pay a debt if it has no economic value).

    If, however, it was legal for someone else to use the name, they probably could have used it
    originally, except someone took it already. Thus the only people who need to fear this law are
    the squatters.

    This ruling may help against squatters initially, but it opens up a whole new world of extortion.
    If a domain name is property, then it can be a subject of a property-lien. Suppose I squat on a
    domain name and I hire you to put up a web page on the domain and say I'll pay you $1M to do the web
    site. I don't pay you (of course) and you put a lien on the domain name. Now when the "rightful"
    owner of the domain comes along, he won't be able to sell the domain w/o paying off the property-lien
    since the property-lien takes precidence over the garnishment action. Ouch.

    Somebody better rethink this ruling and say that the domain is a license, not property, or things
    could get really ugly.
  • Well, you can start by searching the US Patent and Trademark Office [uspto.gov] search engine. It's not perfect, but it's fast and well help you cull out the really stupid mistakes.

    I have a friend who just lost his trademark because he didn't do a USPTO search, and is regretting it. This time around, we searched pretty damn thoroughly.

  • Trademark infringement is a frightening aspect of the legal system. I can only imagine what will happen next - with only 3-6 usable TLDs and some companies claiming rights to all of them... It's only a matter of time before it runs out of control. We may be at that point now.

    Perhaps there is a market for a company to research trademarks before a domain name is registered. Welcome to Patent Law...

  • by jani ( 4530 ) on Wednesday March 24, 1999 @02:55PM (#1964364) Homepage
    (Some people will probably be offended by parts of this comment, as it
    contains rather harsh statements about the way the USA is handling the
    Internet, which I view as an _international_ network. So if you're
    likely to take offense by such views, please skip this comment, and
    read someone else's, this isn't good for your heart condition.)

    ---------------


    This comment comes in three parts:

    1) USA's laws and court rulings, and their validity on the Internet
    2) Trademarks and Internet domain names
    3) What about Network Solution, Inc, and domain name registry?


    ---------------
    1) USA's laws and court rulings, and their validity on the Internet


    Is the Internet something where only the laws of the United States of
    America count, and something which only the USA has jurisdiction over?

    I think not.

    And it bugs me a bit that few appears to see this, even among those of
    you posting comments here.

    It is more than twenty years since the Internet became an
    international phenomenon, and perhaps it's time that the USA --
    government and all -- start to realise that, and stop pretending that
    USA's laws and court rulings can be valid for something that is a
    world-wide affair.

    Sure, I incidentally registered "my" domain name under the
    _international_ .org with Internic, which incidentally is run by
    Network Solutions, Inc, the USA based company. But I can't really see
    how I, as a registrant of an international domain, can be expected to
    know and follow the USA's trademarking laws, nor to know which
    companies have registered which trademarks in the USA. And I don't
    have much of a choice when registering an international domain name,
    do I, if I intend for it to be useful?

    We might as well give up the DNS services, split the Internet in
    national pieces (good thing for European ISPs, who wouln't have to pay
    for the costly lines across the pond anymore), and avoid the problem
    altogether, because it's absolutely intolerable that the USA should
    decide for the rest of the world in this case, as in any other.

    An international network must not and can not be run by one
    government.

    ---------------
    2) Trademarks and Internet domain names


    What about trademarks, then? Should we just ignore them?

    Yes.

    Trademarks don't prove anything, except for who got there first, and
    how the people registering them felt that day.

    Some people may still remember a company named Apple, founded by the
    Beatles, which tried to prevent Apple, founded by you-know-who, from
    using that particular name. That didn't work, because Apple and Apple
    were in different markets. Now, how do we solve that, when Apple and
    Apple aren't so much in different markets anymore? And, as others have
    pointed out, who has the better right to apple.com? The oldest (Apple
    in music) or the presumably biggest (Apple in computers)?

    Other questions arising are: What should happen if a domain name has
    been registered by an organization which _hasn't_ registered that
    particular name as a trademark, and some years after, someone else
    registers it? Should the traditional organization, known world wide
    for its name, have to give it up, just because it was trademarked in,
    say, India, by some hitherto unknown company, or a company who decided
    to release a product by that name?

    The solution is really, really simple, although I feel that I'm
    repeating myself here:

    Don't accept trademarks as a reason for a "right" to domain names at
    all.

    There is no way -- currently -- to keep track of all the trademarks
    used in the world, and likewise no way to determine a really fair
    outcome of disputes. Taking such things to court is a painfully
    obvious mistake, and the court where such a case appears should
    recognize that.

    ---------------
    3) What about Network Solution, Inc, and domain name registry?


    It's definitely time for Network Solution Inc's reign in the kingdom
    of international domain name registry to end.

    I think the stewardship for international domain names should be split
    up, and shared between non-profit organizations of at least two
    different continents, maybe three (Asia, Europe, North America), and
    with room for expansion later (Africa, Oceania, South America?).

    This should provide better redundancy in case of failure, it should
    split the workload, and it should make the reliability of things such
    as the trans-atlantic links less important for domain name registry.

    Coordinating between two, three or four different sites isn't that
    difficult, as long as one allows for at sufficient time (twenty-four
    hours?) to check for registration collisions (semaphores, anyone?).

    Shall we get started?


    ---------------

    These were, of course, just my personal opinions. Treat them as you
    like, but please ask before you quote me somewhere else than here on
    /., okay? :)
  • ...Rob was being tongue-in-cheek. Welcome to the world of being wit aware.
  • I'm not sure what this has to do with the article, but which site it redirects you to doesn't determine ownership. According to whois, applemacmate.com is owned by

    Software Innovations Technology (APPLEMACMATE-DOM)
    40 Jln SS21/18, Damansara Utama
    Petaling Jaya, Selangor 47400
    MALAYSIA

    Domain Name: APPLEMACMATE.COM

    Administrative Contact, Technical Contact, Zone Contact:
    Choong, Chong Yew (CYC14) chongyew@POBOX.COM
    +60 (3) 9661168 (FAX) +60 (3) 9661136
    Billing Contact:
    Choong, Chong Yew (CYC14) chongyew@POBOX.COM
    +60 (3) 9661168 (FAX) +60 (3) 9661136
  • If you wanted to make fun of Pepsi, you could register the name takobell.com. In this case tako is the Japanese word for octopus. Then put a humorous parody site featuring tako fajitas, tako tacos, etc...

    The US Supreme Court has already ruled that parody is protected under the 1st Amendment.
  • The Federal Court in Virginia made a ruling based on their interpretation of existing Federal trademark laws and regulations. If current laws do not have any specific rules governing trademarks and domain name, the problem is not with the courts. The problem would be that Congress has not taken the time (they would rather spend it renaming Washington National Airport) to address this issue.

    If there are existing specific laws, the courts do not have the jurisdiction to make up their own laws. If this decision is a mistake, then it will probably be taken up by a Federal Appeals Court. If issues concerning the Constitution are involved, then the issue can eventually end up at the Supreme Court after Federal Appeals Court.

    In the absence of existing specific rules, the courts interpret the law to the best of their ability. If you don't like it, complain to your representative in Congress about the need for additions or changes to US Trademark laws. They will then try to pass a law that violates the 1st Amemdment of the Constitution.

    Boy, am I mad a Congress today. Must have been that Newt article.
  • Thanks for your interesting comments. Now my head hurts.

    If I have a trademark and a domain that uses that trademark, can the courts force me to sell the domain name while I still hold the trademark? If the courts cannot force me to sell off a trademark, then it would seem that they could not also force me to sell off the domain name if it contained a trademark.
  • I want may.com since it's my last name.. This s a bad thing../
  • Seems pretty straightforward to me. If you lose any court case, the winner can try to auction off your property. I think you are overreacting. For instance,

    his decision gives lawyers a way to go after my other domain assets, whether or not the alleged infringement was intentional

    Let's rephrase that:

    his decision gives lawyers a way to go after my other property, whether or not the alleged infringement was intentional

    So where's the beef? Looks pretty ordinary to me.

    --
  • The advent of round-robin DNS servers made this policy impossible to enforce.

    ---
    Openstep/NeXTSTEP/Solaris/FreeBSD/Linux/ultrix/OSF /...
  • Uh the domain in question was registered to a consulting company called "Tacoana Belladona Industries" the name tacobell.com was a shortened form of the full name. The company did internet based consulting, so it had a hell of a lot more right to the domain name than Pepsi Co. did.

    Please don't assume everyone was out to defraud some "poor innocent" mass market company out of some pitance of money.

    ---
    Openstep/NeXTSTEP/Solaris/FreeBSD/Linux/ultrix/OSF /...
  • by juuri ( 7678 ) on Wednesday March 24, 1999 @11:06AM (#1964374) Homepage
    Id like to know where this ruling was years ago when Pepsi strong-armed both me and the internic out of tacobell.com which I had previously owned for years.

    My domain had *nothing* to do with the Tacobell restaurant and they had no real legal claims. But this was before the new internic forms rolled out that contained phrasing protecting the internic and trademark holders. The result? The internic dropped the domain from its databases for a 3 month "evaluation" period in which Pepsi somehow became the new domain holder and we got pretty new forms with lots of legal mumbo jumbo thrown in.

    Id just like to see someone come and try to take nsa.org from me now (oh wait they already have and lost).


    ---
    Openstep/NeXTSTEP/Solaris/FreeBSD/Linux/ultrix/OSF /...
  • Sure, I incidentally registered "my" domain name under the _international_ .org with Internic, which incidentally is run by Network Solutions, Inc, the USA based company. But I can't really see how I, as a registrant of an international domain, can be expected to know and follow the USA's trademarking laws, nor to know which companies have registered which trademarks in the USA. And I don't have much of a choice when registering an international domain name, do I, if I intend for it to be useful?

    A good argument from justice.

    However, an absolutely worthless argument under the law. Network Solutions is a U.S. buisness whose physical activities are confined to the USA, and thus its dealings are subject to U.S. law, even if they people they are registering names for are Plutonians resident on Mercury and incorporated under the laws of Alpha Centauri. Whether you can get a international domain name elsewhere is irrelevant, legally. A challenge to the U.S. law is a matter for diplomacy, and perhaps the WTO or ITU.

    But a good argument from justice.

  • Rob: /* Why are the courts allowed to decide this? */

    Simple. We the citizenry voluntarily give some of our power to these old guys to make sweeping decisions about all things, great and small.

    If you don't agree, you can do something about it. These judges are appointed by elected individuals and you have the power to elect them based on issues like this.

    Welcome to the world of being politically aware.

  • is the name for the power exercised by courts in interpreting laws, as supported by centuries of tradition in the Anglo-American common law. Specifically, in the United states, the term refers to the Supreme Court's power to evaluate whether a given law is consistent with the Constitution (as codified in Marbury v. Madison ). Far from being "not strictly constitutional", judicial review goes to the very heart of the Constitution and ensures its supremacy over all the (necessarily) lesser laws of the land.

    I don't think your claim of the "balance of legislative power" shifting to the judiciary is legitimate, given that judicial review is exercised only when a legislature creates a law that is either (1) incompatible with the Constitution or (2) so vague as to make it impossible to determine its relation to the Constitution. This is as it should be--permitting the Congress to change the Constitution if and only if it passes an amendment ratified by three-quarters of the states. Judge-made law is here to stay, and IMHO it's perfectly in keeping with the intent of the framers with regard to the division of power among the branches of government.
  • No, the decision described in the article doesn't deal with the trademark aspect of domain names. Umbro won the right to the domain name in a previous suit. Since the company was Canadian, Umbro could not seize any of the company's assets as damages. So, the court in this case ruled that the Canadian company's other domain names were property that could be taken and auctioned off. A property right in the domain name is a lot more valuable than the previous license to the domain name! This is good for domain name holders.
  • This decision is not about trademarks. It is about being able to find a way to be reimbursed for legal fees (what is greedy about that?). The judge ruled that the company's other domain names were property that could be taken in order to satify the judgement in favor of Umbro. I don't understand why you are so upset about this.
  • why is it so scary that someone could take your domain name if you owe them money? It seems no worse than having your home stereo system repossessed.
  • I have a Property class tomorrow, and we are talking about the different between licenses and leases (basically what is at stake in this case).

    You don't know how pleasing it is to hear that another law student reads Slashdot.

  • How does the fact that domain names are I.P., but IP addresses are more like telephone numbers work together?

    (Arrg. Someone in washington needs to get rid of internic.)

    Sounds like government swaying to the needs of big businesses. Hehe. You love them and you hate them. On one hand they combat MS for us little people, but on the other, they say we are not important enough to have a domain name.

    I think this is just further proof that the internet is turning into a pile of commercial shit. If business had its way, we would have an internet full of nothing but adverts, with no real content at all.

    Again, we owe our thanks to the people out there who work hard to provide content for us and try to keep it from going to commercial hell.

  • Adding fuel to the fire, here...Yet another reason why the decision in the Umbro case was ill-conceived.

    The way I read the article, it looks like Umbro is trying to get whatever they can out of the domain name "pirates". They sued, and got a default judgment (ie, won the domain umbro.com) PLUS $25,000 in attorneys fees. But, the only assets Umbro could find to cover the attorneys fees were the defendant's other domain name registrations. The judge buys the argument that the domain names are "assets", and orders them garnished. But that's not the end of the story.

    What if the Canada company registered domain names for trademarks it legally possessed? Under the court's ruling, these domain names are to be seized and auctioned off to the highest bidder. Thus, the Canada company would lose its right to use THEIR OWN TRADEMARK as a domain name.

    Imagine suing Amazon.com, and winning a trillion dollar award that puts the company nearly out of business. Under the Umbro decision, the court could seize amazon.com, and sell it to the highest bidder. Amazon wouldn't be able to use its trademark name anymore (even if the company survived). Is this the result the court wants?

    I think this result is what Umbro's lawyers intended. Quoting from their press release referenced in the article: "The decision provides significant leverage for trademark owners by imposing a real financial risk on the domain name pirate, who now faces the risk of losing not just the specific infringing or dilutive domain name registration at issue, but also every other domain name registration it owns."

    The problem is, the ruling affects more people than naughty domain name pirates. I see a far broader reading of the Umbro case: Trademarks are property. While this statement might meet with agreement from many trademark scholars, to have it so bluntly stated is a bit disturbing. One of the big issues in trademark law today is whether we consider the trademark as merely an identifier of goods used in commerce, or as a property interest in and of itself.

    Clearly, we know what the judge in the Umbro case thinks...I'd love to read the full decision, but couldn't find it on Lexis or Westlaw. Anyone have a cite?

  • One could argue that trademark infringement is trademark infringement no matter what the medium is. I'm sure company XYZ would get sort of upset if I hand painted their logo on the side of my office building just for fun and it would be their right to sue me. So I would take it down and probably pay no more than the cost of the paint thinner.

    Domain names are similar. If I grab companyXYZ.com then I am essentially painting their name on the side of an internet building. If it's their trademark then they have the right to make me take it down and I'm out the money for the paint (err... payment to NSOL).

    Ignorance of whether or not the name is trademarked is really no excuse. I hate to say that because it does make life a little harder, but the same thing would happen if I started selling T-shirts that said "Life Stinks" only to find out that another company trademarked it. Only, in that case they can actually probably sue me for damages since I was making money from their name. Most likely they would just make me stop selling them and I would lose all the money I spent printing the shirts.

    As for getting domain names in a judgement, you would probably have a hard time assigning a value to that domain name. If the domain name is trademarked then I'm sure their are already legal means to determine the value associated with a trademark.

    If a person does get sued over domain name "ownership" it would be tough to get a big settlement unless the infringement was fairly obvious. Damages would result from a perceived dilution of the product/company name. In cases where the name was fairly obscure it would be tough to prove any significant dilution.

    Anyway, I'm off to go see if my domain name is trademarked by someone. :)
  • by Lx ( 12170 )
    yeah, and do we have to pay property taxes on it?
    -lx
  • I just want to know why people think that a domain name can be a trademark infringement ? I mean, a domain name is an address, not a title. If the content of a site seeks to defame/dilute/exploit a trademark then that's a different matter. I used to live on Springfield Road, but I don't expect Matt Groening would get very far trying to force me to move house because I was infringing his trademark/copyright...
    Yes, some companies are sited on roads named after them :- that is a priviledge, not a right.
  • I disagree with those decrying this decision. If it is was it appears to be, the propertarization of domain names, it is a good thing. The trademark issue is not relevant; read the article. It merely states that given a trademark dispute which had already been judged, and a plaintiff awarded damages, that said damages could include the seizure of domain names as property. So, property is the issue; specifically, should domain names be treated as property or not?

    Generally, things which can only be sensibly used exclusively are best treated legally as property. Ownership of a thing means that the owner will reap the full fruits of developing it, and thus, has the correct incentive to develop as fully as is economic. For example, if you want to build a house, you buy the property where you are going to build first. Otherwise, you are just going to hand a nice house over to whoever you lease the property from.

    The same applies to domain names. The one obvious reason to want to own is so that all the hard work you put into a site is not lost when the "landlord", noticing that you have improved the place, kicks you out. Of course, it is possible to write a lease with renewal clauses for this reason. Owning a domain name differs from renting it from the government, in two main ways.

    First, it means that your domain cannot be taken from you without due process, etc. Perhaps the two year fee will remain, as a tax. There is no practical difference monetarily, but a world of difference legally. A lease, for instance, can often be revoked at the pleasure of the leaser.

    This difference then induces the second major difference. Things that are owned by the government are generally managed, censored, repressed etc., in the "public interest" (whatever that is). This has two effects. First, it chills the speech involved, if it is a medium of expression. Second, it cuts off the technical incentive for more effecient economic uses.

    A perfect example is radio frequencies. These are (at least in the US), owned by the public, generally, and only licensed to radio stations. As a result, the speech on radio is chilled; stations are afraid to broadcast "obscenity" for good reason: they can lose their licence, they can be fined millions ala Howard Stern, or they can merely be rejected when their licence comes up for renewal. Radio, as a result, is relatively bland. Compare, for example, the uncensored, and privately owned, paper media. That is the chilling effect, in action. The second aspect, also relevant to geeks, in the uneconomic use that has resulted. The radio spectrum is, or rather, could be a gold mine. There is plenty of spectrum for everyone to have a radio station, using modern spread spectrum techniques. Now, not everyone wants to broadcast records, but probably anyone reading this would not mind a wireless 1M connection to the net, eh? Technically feasible even now; problem is, most of the good spectrum is taken. The only way to get it is via a polical process, convincing the real owner, the FCC, to lease it for uses other than radio stations. But they are not interested in small users; said do not contribute any serious sums to Democrats or Republicans.

    Let us extend this example to domain names. Consider the CDA. Congress is stupid; had they been on the ball, they did not need to explicitly censor the net. What they could have done, and could still do (unless domain names are property), is make the renewal process automatically disallow the renewal of any domain name which is deemed "obscene". Just like radio. Bingo -- censorship, with none of the hassles, since you have created the incentive for the domain owners to self-censor in fear!


  • i THINK it was a joke. I hope so atleast.
  • Just as an FYI, if someone REALLY wanted to get NSA.ORG from you, they'd point out to InterNIC/NSI that you're in violation of the user agreement by only having a single DNS server, and that they should drop the domain.

    Something you might want to consider. I know they USED to enforce that way "back in the day", but I don't know about nowadays...
  • Well unfortuantely the Constitution has been rendered nearly useless except where it suits the government. Latest example is how in some states you car is impounded if you are arrested of driving under the influence, if you are found innocent, too bad, they still keep your car. As any scholar can tell you, this is exactly what the Constitution sought to prohibit, the government should not have the power to arbitrarily take property. Oh and don't even get me started on how this relates to the second ammendent :)

    You have no freedom (my response to a certain Sun executive's comment on privacy).
  • The legislative power hasn't "swung away from our elected representatives"; they're pushing it away.

    When politicians want to satisfy a wide range of conflicting interest groups simultaneously, they have everything to gain by writing a vague law, telling every side that the law suits their needs, and then letting the courts figure out what the law really means.

    Also, they like doing social engineering through tort law, since it allows them to give an interest group an economic benefit (i.e., the right to sue for a certain newly-defined offense) without raising taxes.

  • The issue here isn't whether domain names are able to be snagged through legal means due to trademark infringement. That was a done deal, in this case. The issue is that Umbro and their lawyers (I used to work at that firm about 12 yrs ago, FYI) should be able to get MORE domains out of this company as 'damages'. The NIC didn't sell the domains - the ruling was that Umbro/A&B were to be given ownership of the 27 domains so THEY could sell them in lieu of a direct cash settlement from the defendent (who didn't bother to show up in court, which is their OWN fault).

    Trademarks aside - if I sued you for something, whatever, and won, and couldn't get anything tangible out of you (you're in another country)... but you have a domain or two... should the court be able to say "Ok, you can have that instead"?
    That's the 'treating domains as property' thing - being able to take them away and give them to someone else, even when there's no trademark dispute over the domain names themselves.

    Ick.
  • I don't think that's the way this is going.

    The way it reads to me, if someone has a domain that you want (and you have the trademark and all the info to prove you should get it), you'd still need to go through the existing channels...

    The problem here is that domain names were taken from one entity and given to another in lieu of $$$ damages in another case - the fact that the first case involved a trademark/domain issue is irrelevant. Said case could have been over "dog bites neighbor".
  • Registering 'starwars.com' and sitting on it has the same effect as running a site on it - it denies its use to the trademark holder. Whether you make money off of the site is immaterial.

    One of the big problems with the trademark issue is that there is only one .com address for any particular name - and no telling how many companies with that name (who all have the name trademarked, but in their area of business) will try and get that name.

    Has anyone seen any cases where two companies with the same name, but completely different types of businesses, have fought for a single domain? If I were the judge, I'd grant ownership to whoever got the domain first, in cases like that - and not to whoever had the most expensive lawyers. Look at Delta, for example - delta.com is owned by some piddly company, and Delta went with 'delta-air.com'. Delta the airline didn't get there in time, and the other Delta had a legit claim to the domain, so they went elsewhere. Fair 'nuff.
  • I can't say I'm a legal-search expert, but maybe someone else is... is there anyone out there who can dig up a weblink (if the docs exist on the net) having to do with this case? I'm curious as to who the Canadian company in question is, what sort of business they're in (i.e. whether they're a domain squatter or not), etc... If they ARE squatters, I say, stick it to'em. Domain squatters are the financial bottom-feeders of the net anyhow. I can't say I like the thought of domains being able to be ripped away from someone en masse...

    Heh... here's an amusing thought. Assuming the company IS a squatter... and Umbro/A&B *does* get the 27 domains... they're being handed over for the purpose of sale/auction to recoup the attorney's fees, right? Well, if the SQUATTER couldn't sell/auction them to someone (seeing as they still retain them), what makes Umbro/A&B think *they're* going to be successful? Unless they get about $1k per domain, and sell ALL of them... they're still in the hole.
  • Microsoft owns the Apple MacMate?

    Go check out http://www.applemacmate.com and see what pops up.
  • ... but you get what you pay for ;-) (so someone please correct me if they think my statements are misleading)

    I think the court's decision can be summed up in three statements:

    First, you now have a good opportunity to make some cash money off of InterNIC if they take your domain away without a damn good reason. Damn good reasons would include non-payment, or trademark disputes*.

    *Second, legit companies now have a better chance at winning trademark disputes. This can be a good thing or a bad thing, as this may encourage companies to go on a legal rampage against unrelated and seemingly innocuous sites (remember ajax.org?). I've always though that some new trademark guidelines should be established to handle domain name disputes. This court decision only shows the urgency for such guidelines.

    Finally (and this is the BAAAD ONE!), since your domain name is now considered property, what's stopping it from being treated as such somewhere outside of the realm of the internet? Going bankrupt? Your domain could be sold off by the courts to pay off your debts. Being sued? You could lose your domain name in a judgement. This whole part of the court's decision scares the bejesus out of me. I've never been one to use a media cliche, but (ahem):

    "this could have a chilling effect on overall Internet growth."

    Yuck.
  • Think of it like leasing a car (I know, really bad analogy, but give it a try -- you may like it).

    If you lease a car, the bank owns it, but you can drive it for as long as the contract is in effect.

    If you fail to pay, or breach your contract in any way, the bank can take your car away.

    If the bank takes away your car without any reason, you can sue the bank for breaching the contract and buy many cars with the judgement money. ;-)

  • You're right in that if it's a legitimate lawsuit, you get what you deserve.

    I guess my fears were rooted in frivolous lawsuits that could be used to obtain someone's domain name. I'd be hard pressed to find an example this sort of thing happening. But considering the state of our legal system... :-(
  • -- start quote --

    "Typically we thought registrants had a two-year license to a domain name, but the court is suggesting they have a property interest. As a result, if the registry takes a name away from you without a legal basis, than you can sue them for civil damages. And that's a powerful thing," Fausett said.

    -- end quote --

    In other words, less power to internic, which is GREAT!
  • hmm, if you want a virtual network to usurp the DNS scheme you've got a lot of work...

    not only will you building this "meta-net" you'd have to get "meta-nameservers" to distribute your "meta-dns tables" too...

    how hard was it to get the 6bone set up? it'll be that hard or worse... ;->

    then when IPv6 takes over you'd run into something new... an IPv6 packet in another IPv6 packet... might get screwed up... and the "meta-net" yahoo will start pointing to the InterNet yahoo

    sill the free meta-net idea might have some merrit... but rather than IPv6 you might want to use a different protocol

    -TekDrg
    technopagan.dhs.org
  • The argument can be made that an Internet domain name is sort of like a radio station license, and therefore property, however, there are numerous laws and regulations about who may obtain a radio station license and how they may go about it, and laws governing the transfer of a license from one party to the other. At least until recently, a domain name has been a fairly simple matter of registration with one entity assigned by the government to do so, with no required linkages to trademark ownership (which probably should have been designed into the original Internet laws, etc.)

    After the fact, companies realized that a valuable commodity could be taken too simply, and in many cases have sought to legally strong arm smaller entities into giving up their own domains -- even though those domains were registered 100% in accordance with the law existing at the time. (I wonder how many times a reasonable offer was extended prior to the strong arm tactics, by the way)

    However, this judges decision becomes in effect an "ex post facto" law, that is, a law passed after the fact (which is constitutionally prohibited in the U.S.). Now I can be successfully sued for obeying the law.

    A final point -- do any of us really think that attorneys as a whole are in favor of fairness here? Heck, instead of chasing ambulances, why not chase domain name registrants instead!!

    That's why I think this decision needs to be reversed.

  • (IMHO and with the note that I am not a lawyer)

    My thoughts are that the judge overseeing this case must have been out of his mind. This is an absolutely wrong-headed legal precedant. Look at the basic facts here:

    We have a Canadian company which in my mind seems to have legally registered a domain name with the quasi - governmental company responsible for the registration. Umbro files suit, the Canadian company doesn't show up, which gives Umbro a 'default judgement', basically a legal "forfeit." But instead of just turning over the domain, the judge extends trademark laws to include domain names.

    Following this, the (greedy b------) lawyers representing Umbro sue Network Solutions to force the sale of all domain names held by the Canadian company, in order to pay for the legal costs. Read this:

    "The registrant had no tangible US assets that we could levy on, but they did have a number of other domains that they had registered through NSI, so we asked the court to garnish those so we could seize them and sell them to the highest bidder."

    Here's the kicker: how many of us who have registered ordinary domains did a trademark search before they registered? Or have since acquired a trademark to match their domain name? (spendy stuff, this trademark requirement) My point is that it isn't legally required. So if some company out there chooses to sue me because I didn't know they had a trademark, if I can't afford the cost of legally fighting it out in court, but I own several other domain names -- [perhaps with assets or even their own trademarks.] -- this decision gives lawyers a way to go after my other domain assets, whether or not the alleged infringement was intentional.

    But here's what really blew me away: "The law firm said the ruling gives trademark lawyers a new sword to combat domain name piracy." Not in my book: it just gives attorneys legal standing to act as domain name pirates on behalf of their clients.

    The article mentioned that another trademark attorney said that this ruling is actually a good thing for domain name owners: "Typically we thought registrants had a two-year license to a domain name, but the court is suggesting they have a property interest. As a result, if the registry takes a name away from you without a legal basis, than you can sue them for civil damages.

    True. Unless another company had the trademark first, right?

  • I agree. In this sense, Umbro is a 'claim-jumper.'

    The previous owners of umbro.com registered that domain with internic, much the same as a gold miner would pay his fee, and register a plot of land in the gold rush days.

    What I'm afraid they're saying here is that: If you have registered/paid for a domain name. You don't have the rights to that domain name should someone else register that name as their corporation's trademark.

    If you have the $$, you can get what you want from the courts. just look at what happened with OJ.
  • ... So who gets the profits of the sales of those other domains? The lawyers? The court? Internic? Umbro?

    None of which need the money...
  • Finally, someone recognizes the fact that we've paid money for our domains, and that makes them ours. If they don't violate copyright law, how can anyone justify taking them away?
    ---
    Tim Wilde
    Sysadmin, Dynamic DNS Network Services
    Free Dynamic DNS aliasing.
  • Oh. Oops. Paint me purple and call me stupid :) Now that you explained it, its VERY VERY bad indeed... hmm... PANIC! Oh wait, um, nevermind. Anyway, thx for explaining.
    ---
    Tim Wilde
    Sysadmin, Dynamic DNS Network Services
    Free Dynamic DNS aliasing.
  • Internic does not 'own' domain names. They administer the root nameservers (sort of).
    Your fee is a fee for them to add the entry for your domain to the root servers as well as to administer changes to it.
  • One problem with that, however, is that the same term can be trademarked by different entities for different types of business. Revisit the Ajax.org dispute - there's at least a dozen or so trademarks for Ajax, all owned by different companies and all used for different things, from cleanser to construction companies. So say the construction company gotten on the net first and registered ajax.com, then a few months or years later P&G decides they want a website for their cleanser. Whose trademark has dominance? P&G is huge and has more lawyers and lobbyists. Who do you think the courts and NSI will choose?

    The courts seem to be showing they don't have a clue about how to deal with this sort of dispute with any sort of equitable, common-sense judgment.

    The Web is local, the Web is global. With the exception of a small number of made-up words, trademarks cannot be defended in the traditional way, because "infringement" becomes a much more slippery category.

    This is a situation where, I believe, legislation has to redefine the situation, rather than depend on the irrational, ignorant, contradictory rulings of the courts.
  • If only it were that simple. Let's use a fictional illustration. Say I own a company called Sun Inc. I sell photovoltaic (solar electric) systems in several Western states. I trademark the name Sun in connection with the sale of PV equipment. It's the early 90's. The Internet is beginning to attract attention in the wider world. I hear about the World Wide Web, and decide, in a bold move, to get my company on it. So I buy the domain sun.com before a certain other company does. On my site I have product and ordering info for my merchandise. A certain other company, that has trademarked its business name connected to the sale of, say computers, finally gets off its butt and realizes it needs to be on the Web. It goes to buy the sun.com domain and finds out that I own it. This other company cries "trademark infringement" and my domain is hijacked.

    Is there really an infringement there? We both have trademarks. We're both intending to use the domain to do the business for which our respective trademarks are registered. Who deserves the domain?
  • I agree. If I wanted to check on a pepsi giveaway, I'd like to be able to type 'pepsi.com' and not get something else.

    Apple? Well its 'applecomputers.com'. Apple is too generic.

    Common sense... Too much to ask for?

    I dislike these stupid trademark infringement lawsuits as much as the next guy, but people have sunk lots of money into their trademarks and should at least have right of first refusal (gray areas, see 'common sense' above.
  • is the technical name describing how the balance of legislative power has swung away from our elected representatives to the appointed judiciary. In a nutshell, it means that the courts are in making law. This is all well and good, except that it isn't strictly constitutional. Congress, thus ourselves as the voting populace, is, in fact, powerless to decide the outstanding issues of our day.
  • You've misunderstood the court's ruling. From the article:

    The ruling stems from a trademark infringement suit filed against a Canadian corporation, 3263851 Canada, Inc., by Umbro International, a manufacturer of soccer equipment. In the suit, Umbro claimed the defendant infringed upon its trademark when it registered umbro.com in 1997. When the defendant failed to show up in court, the judge issued a default judgment, turning over umbro.com to the company and awarding it $25,000 in attorney's fees.

    The court held that despite the fact that 3263851 Canada Inc. had paid for the domain, the name Umbro was trademarked, and therefore the domian name umbro.com was an extension of that trademark.

    The problems with this ruling are daunting. As I understand it (insert disclaimer), the same name can be trademarked concurrently, as long as the name refers to different contexts. i.e. there can be simultaneous Umbro trademarks owned by Umbro the sports equipment manufacturer, and Umbro the (hypothetical) dance company. Think about Windows(R) for a moment to see why this must be so.

    So what happens where there are two or more legitimate trademarks of the same name (e.g. Windows) and there is only one whatevername.com? Obvously the idea that a domain name is a natural extension of a trademark cannot possibly be logically consistent.

    I'd need to read the actual decision to see what the judge's reasoning is though. Further, all this is subject to an appeal.


  • Hmm, I guess I'd just chalk that up to outright stupidity. Unless the company was around years before the Taco Bell restaurants and actually used the abbreviation TacoBell at that time, it's just plain stupid to use "tacobell" as your name. However, if this wasn't the case and the company had been around and using that abbreviation before Taco Bell came on the scene, ignore the next paragraph.

    It's analogous to me setting up a company called Wallace Martins and trying to use WalMart as an abbreviation. The only reason said abbrevation would come to mind is because of the (trademarked) company name being so popular. Anyone who couldn't see that shouldn't be allowed to reproduce, much less hold a domain name.

    --

  • And I want bob.com, since that's my first name.

    Oops. Too late.

    Registrant:
    Microsoft Corporation (BOB3-DOM)
    One Microsoft Way
    Bldg 25
    Redmond, WA 98052

    Domain Name: BOB.COM
  • by rd ( 30144 )
    Then can I use it as collateral for my vacation loan?
  • Hmmmm, let's see. If domain name is "property" that would mean I get capital gain rate (20%) when someone pays a mill or so for mine :-)
  • This is essentially the same as if you got sued in civil court for doing something (say assault). Now imagine that your bank account is pretty much empty and all you really have is your car. The court can take your car to satisfy the judgment against you. Of course, this particular case is different, owing to the diversity of citizenship of the parties. I imagine that Umbro tried to assert that the court had jurisdiction over the defendant's assets in Canada, and the garnishing of the domain names was an attempt to find something of value.


    Too bad I read this only after coming from my Trademarks class. ;-)

  • if it is property, then the "gold rush" rules apply? why bitch at the cybersquatters? if they are so forward thinking companies, they should known the internet wave was coming...I say, I claim a domain name, it becomes my property.

APL is a write-only language. I can write programs in APL, but I can't read any of them. -- Roy Keir

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