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New Domain Arbitration Rules Get Results
Ed Adams wrote to us from the New York Law Journal which has
the results of one of the first domain disputes resolved under the new arbitration
procedures of the Internet Corporation for Assigned
Names and Numbers (ICANN). In addition to the results, the actual
decision is online as well.
The question of whether these new rules are going to be bogus or not is what constitutes "valid" use of your domain. Here's an example: if all your life, you wanted to be called "Spike" but nobody calls you Spike because you are a nebbish, but you finally get the chance, because in cyberspace nobody knows you are a nebbish, and you register spike.com. So, you put some photos of you and your goldfish up there: it's a lame website because you are a nebbish. Now, Spike Records company gets created, after you registered your domain. After operating as Spice.com for awhile, they come to you to buy Spike.com. You think you might sell it because you've been incredibly unsuccessful at getting people to call you Spike. So you say, "how much?"
Suddenly, you could be thrust into the realm of the cybersquatter. Most people I know would say you have a legitimate claim to that domain, but these rules do not protect you.
I used to be a good Slashdot citizen, but I am getting sick of stupid moderation. Be warned, Slashdot, fix the moderation (stupid people have to lose their privileges even if they are well-meaning) or I'm going over to the dark side. What's this comment doing here? moderation baiting! Because what I wrote above is better than most of what's in this forum, I'm daring you to piss me off by not moderating this up.
"Mike Pearson" plainly stated on at least two occasions that he did NOT want the domain, that he'd been trying to get his name out of whois...
So, can someone please tell me why the WTO decided to use expensive arbitration procedures to handle this? It'd seem that NSI could have dealt with this one on its own. This was a horrid waste of time and money.
Hopefully they will keep it up.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
The case number is "D00-0001". I suspect that the "00" is the last two digits of the year, and "0001" is a sequence number in the year. If so:
1) Why build a Y2.1K bug? These early decisions are, well, historic. They may very well outlast us.
2) I'm cynical enough to think that 9999 decisions per year might not be enough.
Craig Milo Rogers
looks like mp3.com handed over audiograbber.com already. the news release seems to be data 15mar00, so this is pretty recent news for me ( it's still 14mar00 here! )
check it out--
CraigL->Thx();
"Why pages of legal mumbo jumbo instead of just fixing the error for the defendant, telling the plaintiff that there is no longer a problem, and go out for beers?"
e /">is here</a>.
<p>
There is an answer to that... because companies only operate in their own interest at the expense of customers, and somehow the legal systems and governments are interested in "companies" rather than the ideas of "right" and "wrong".
Feel free to consider how stupid the MD of Easyspace is in twice refusing a simple refund of a "service" I didn't even realise I didn't want, and phoning me up to be abusive late on a Saturday night: an appropriate link <a href="http://www.glutinous.custard.org/sleasyspac
~Tim
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Rushing on down to the circle of the turn
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
Actually, based on this and the other criteria for applicability, it sounds like Jackie Franck (author of AudioGrabber) has a pretty good case for getting the AudioGrabber.com domain. This is definitely one instance that I'd like to see happen.
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"Go Metallica. Die RIAA." -- Linus Torvalds
Ah, yes, a return to basics. But that brings up a very interesting problem: who enforces such divisions? The last time I checked (which I will admit was well over a year ago), NSI was only verifying .edu applications, which could not be processed through their website anyway. They had, in effect, given up on trying to enforce the original intentions of the domain names.
A tragedy, to be sure, but done for two very good reasons: 1)Rake in three times the money by removing the restrictions; 2)The world started registering ten thousand web sites each day (probably an exaggeration, but close).
If one were truly interested in reestablishing the strict divisions between TLDs, I can only think of one good solution: only allow a registrar to register a single TLD. BobsBigDomains gets to register .com; connect-u-net.net gets to register .net; and so on and so forth.
The personal TLD is needed so incredibly badly. But I don't see it happening any time soon -- too many McDonald's in the world. (That was a joke, son.) Seriously, though, opening up a personal TLD would lead to just as many disputes, unless you're lucky and have a rare surname. Which Smith gets to register the smith.sum domain? The first one to click on the submit button? Capitalistic, yes, but really not much better than what we already have.
Aargh. I think my head just exploded.
"I came here to kick ass and chew bubblegum. I'm all out of bubblegum." MSE USC APX AIA CSI CASp
First, I think there needs to be a domain specifically for personal Websites. In past posts I've suggested ".sum" which is Latin for "I am," fits into three letters, and is gramatically correct ("Millennium.sum" translates to "I am Millennium" if I'm not mistaken).
Hasn't this idea been knocked around for a long time? And for a lot more than just "Websites" as well. I think ".nom" was the first suggestion I saw, as in "nom de plume" or "nom de guerre," to mean a domain for an individual.
You cannot apply a technological solution to a sociological problem. (Edwards' Law)
That's a good point. But suppose offering of such contracts were illegal, i.e. the domain name would returned to the provider if such a contract were offered.
Even so, let's say I register ibm.com and IBM decides they want it (we'll ignore the fact that they already have it), so they pay me for it, they then report to NSI that they paid me for it, NSI takes it away from me and IBM registers it. If IBM wasn't allowed to register it because they were the ones that tried to buy it, they'd just get someone else to pay for it.
Suppose that you offer it to them using some anonymous means: they pay you money, you return the domain to NSI, IBM complains to the FBI, the FBI takes the money from you and gives it back to IBM.
That would make it a legal issue, which there is no reason for it to be. I had assumed you were referring to some sort of self-regulation, similar to the way the NCAA makes sure that their members don't pay athletes, the NCAA can take action against the colleges, but can't involve the FBI since it's not illegal. There's no victim in the sale of a domain name, therefore there's no reason to make a federal law prohibiting the sale of them.
hrmpf.. typical.. the guy elbows someone out of their rightful domainname, and elbows is what his name translates to from dutch (and quite possibly german)
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
This whole rage against cybersquatting is getting out of hand. Stop and think for a moment what this means to our web, and to its users (me and you).
What we saw in this example was a private citizen who registered a domain name (which is legal), tried to sell it (which is legal), and had it forcibly seized by someone who decided he wanted the name three years after it was registered (which, amazingly, is perfectly legal!).
Could your domain be seized by anybody with enough money to buy big bad lawyers? Say I register a domain name. We'll say it's dermarlboro.com (which is, in actuality, not registered at all). I use it as my personal web page. I occasionally change the graphics and look of the site, and I post interesting stories and pictures I've run across and whatnot. But mostly its useless. It's just my little toy page.
Now say somebody decides to start up DerMarlboro Widget Company, and they go to register dermarlboro.com, and lo and behold, its registered by me. They have a look at my site, realize its owned by just some guy, and decide I'll be an easy chump to bully. So they send me a cease-n-desist, threated to sue me, yadda yadda yadda. I, of course, protest. It's my domain. I've had it for three years. I'm using it. And I don't want to get rid of it.
They decide to have it seized with ICANNs approval. They accuse me of cybersquatting because I'm obviously not running a business that uses the name. I don't own any trademarks. DerMarlboro Widget Company has registered DerMarlboro as a trademark, so they should get the name.
Could this happen? Is this good arbitration? This could allow anycompany to arbitrarily just pick out a name owned by a private citizen and (with Uncle Sam nodding in approval) just take it.
I think real cybersquatters are boils on the neck of the internet. I really do. But we need to be very careful of this kind of seizure of personal property. Cybersquatting is a grusome annoyance, but lets not cut off our nose to spite our face.
The Bible was originally in Hebrew and Greek. For many centuries, the Catholic church held a monopoly on translations of the bible, only endorsing a Latin version, so that the common people would only be able to hear the bible's interpretation by One True Catholic Faith (or something), instead of that of a few start-ups that actually weren't obsessed about controlling everyone.
Why is the universe here? -Well, where else would it be?
The rules for transfer of a domain name dictate that the current owner must have both registered and have used the name in bad faith.
The musicweb domain name was never used, only listed for sale. Still, the panel found that this constituted bad faith use.
I disagree with this finding, although I should add that this is a nutty rule to begin with: Theoretically, this would allow one to maintain ownership of a service-mark domain name as long as they didn't attempt to sellit. Perhaps an interesting strategy for a competitor.
dp
How so? A domain was registered in 1995. In 1998, an individual did inadequate research and registered a service mark by the same name. The latecomer has successfully seized the prior registration.
By the same logic, E-Toys should be able to shut down E-Toy.
First come, first serve. Musicweb did a grossly inadequate background check; it's their problem, it should not be a problem for the person with the foresight to realize that Musicweb would later be a valuable piece of intellectual property.
---
Book(n): Utensil used to pass time while waiting for the TV repairman
It will be interesting to see how this quasi judicial board will handle domain disputes such as bbc.org. Will large multinational corporations use this to foreibly take away a domain name from a smaller site because there may be a similarity in their respective names?
The first judgement was a no-brainer. The cyber squatter was guilty as sin. Hell, he didnt even show.
Its the up and coming cases which will truly show how this will unfold.
Jailbrekr
For instance my homepage is om http://www.dobbelaere.com (my last name). What if some evil company from hell calls himself also "dobbelaere" or registers my name as his trademark? Indivisduals can't fight like companies you know....
Also... let's say you create a special interest webpage in high-school and get you domainname for it. You have been studying the web closely and you have a very good name... let's say something like corvette.com (you create a non-profit website about the car). You know someone has the trademark, but he (the company) doesn't care about the internet yet. (corvette.com being random choice here)Then the company gets web-aware and want to secure his trademark. What will be the outcome....
StarTrek.org Free Webmail
One thing that worries me is the ability of big business to take domain names that have been out there for a while. If i come up with "slashdot" clothing, and it gets popular..do i get to sue Roblimo, et al. for rights to the domain name?? We have to be very mindful of exactly how and why these rules are applied. Additionally - what about .org vs .com or .net - do these rules apply the same. Does a company like sony have the right to take away an "organizations" web site? Just something to run through your gray matter.
-FluX
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"It is seldom that liberty of any kind is lost all at once." -David Hume
The one question this brings up, however, is what defines cybersquatting in general? If it's solely the purpose of the name...then sites like Antionline, Freshmeat, and other well known sites could be at risk (these are just top-of-the-head examples) Because their name doesn't implicitly give any indication of what they're all about. I do, however, agree that these must be handled on a case by case basis. I could easily see this turn in to a sort of McDonalds coffee spill type of situation where everybody is suing everybody else for domain rights that they feel they should have.
We should also examine timliness of situations regarding sites on the web. Companies that have been around for aeons shouldn't necessarily have the right to "bully" others off of domains they purchased from Internic quite some time ago just because they had a "wait and see" attitude towards the internet and e-commerce in general. This is definitely a grey area.
-FluX
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Your Ad Here!
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"It is seldom that liberty of any kind is lost all at once." -David Hume
The facts of the case is that the guy listed at the administrative contact said that it wasn't his domain and he had nothing to do with it. That by itself should have been sufficient to reassign the domain to the complainant. However, one the wheels had been set in motion, they were forced to consider a lot of pointless information and consider it poorly.
.org to host the list. I don't want someone with commercial interests sometime down the line to suggest that my domain
1.: "The domain name is identical to the service mark registered and used by complainant, MUSICWEB"
No, musicweb.com is not identical to MUSICWEB.
2.: The decision goes to great lengths to establish "bad faith use" eventually settling on the claim that the domain was offered for sale on a website.
Gee, if I want to take over a website, all I have to do is produce a printout of a "webpage" that lists the disputed domainname as one for sale. I can make one up in a few minutes.
This decision does not give me any confidence in the arbitration procedures. I have been running a mailing list for several years. I have recently registered a
name infringes on their trademark or servicemark which they may or may not have been using longer than I. I don't see any basis for me to protect my legitimate interests with this decision especially if the complainant wishes to claim that the domain has been offered for sale.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Anomalous: deviating from what is usual, normal, or expected
Canard: a false or unfounded repor
I think all this furor over cybersquatting is ridiculous. A domain name is just a heuristic, a convenient way to designate a network address. If you really want to find a site, you don't start guessing *.com names and seeing if they lead somewhere—you enter some keywords into a search engine, and then you bookmark them when you find them!
I agree that cybersquatting is a problem. But what it should be indicating to us is not that we need the government to step in and protect some arbitrary naming system which happens to collide with commercial trademarks and what-have-you, but rather that the technology, i.e., the global namespace system, is faulty (or obsolete)!
We should learn a lesson from the financial regulatory community. It used to be that when a bank failed, the government would step in and save it. Then we discovered that banks saved that way would just fail again, because they were not competently managed. So now we let banks fail so that new, better managed banks can emerge, and serve the general populace better and more efficiently.
The same principle of natural selection should hold for technology. If some technology proves inadequate, let it fail! Don't perpetuate it with regulations or laws. We all know the "fail early, fail fast" motto.
BH
Fools! They laughed at me at the Sorbonne...!
That really brings up another issue. Most domain disputes are over money; this one is over politics. How should political situations like this be handled? The same as others? Or should there be different considerations?
I would think that the fact that he has a web site, and is using it to present a particular point of view related to the name should be sufficient for him to keep it.
New XFMail home page
/bin/tcsh: Try it; you'll like it.
Complainant contends that respondent has registered as a domain name a mark which is identical to the service mark registered and used by complainant, that respondent has no rights or legitimate interests in respect to the domain name at issue, and that respondent has registered and is using the domain name at issue in bad faith.
Note, however:
The complainant has provided evidence of the registration of the following marks: 1. Service Mark - MUSICWEB, for computer online retail services in the field of recorded music and music information in Int. Class 42, registered for a term of 10 years from September 15, 1998. Complaint, Exhibit B. The Service Mark claims a first use of June 10, 1998. Id. Complainant uses the mark, MUSICWEB, for the sale of recorded music, discs, tapes and other electronic recording devices. Complaint 8.
and... The Whois record of the domain MUSICWEB was created on January 10, 1995 and last updated on January 5, 1997.
So, musicweb.com was created over three years before this guy registered his service mark.
Does that mean that any domains held by speculators are up for grabs? I mean, all you have to do is register a service mark that is the same as the root name of a domain, complain to ICANN, and bingo...the domain is yours!
I dunno...but something just doesn't seem right about this.
Perhaps speculators will simply start registering service marks.
I'd really like to see about 1000 new non-geographical TLDs to put an end to all this nonsense, once and for all.
New XFMail home page
/bin/tcsh: Try it; you'll like it.
The whole business of domain-name squatting needs to be stopped. The question is how best to do it.
.com, a non-profit organization only gets .org, and most importantly an individual can only get .sum if they're using the site for non-commercial purposes.
First, I think there needs to be a domain specifically for personal Websites. In past posts I've suggested ".sum" which is Latin for "I am," fits into three letters, and is gramatically correct ("Millennium.sum" translates to "I am Millennium" if I'm not mistaken).
Second, stricter enforcement of the domain name policy, based on what entity a registrant represents. A for-profit corporation can only register
Third, a simple rule to decide trademark disputes on domain names. If the trademark existed before the domain name was registered, the domain goes to the trademark owner. But if the domain name had been registered and in use before the trademark was ever filed with the applicable offices, then the domain name owner keeps it. The rationale behind that is that if the name had been in use before the trademark was ever applied for, then the trademark itself should be invalid; it is the real attempt at identity theft (case in point: the E-Toys vs. etoy fight; etoy had that name and domain long before E-Toys had ever been created, much less before the E-Toys trademark had been filed).
On a side note, it's scary to see the WIPO having the power to do this (then again, the WIPO itself is a scary thing). But if it's getting done, then at least it's getting done.
I can't help thinking that the problem of domain squatting could easily be solved by simply not allowing domains to be transferred between owners.
If you couldn't sell a domain name to someone, you could offer them a 1,000 year contract to point the domain name to an IP address of their choice.
This does not matter because the ICANN policy requires trademark infringement as one of three rules that must all be in existence before any arbitration can take place. Not only must there be trademark infringement but the domain in dispute must also be used in bad faith (defined below) and the owner must have no legitimate interests in respect of the domain.
From the ICANN domain name resolution policy:
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.
In the administrative proceeding, the complainant must prove that each of these three elements are present.
4b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
No, no, no, no, no!
This is an example of the new rules working.
The new rules make it harder to take away a domain name, by requiring that domain name owners have no legitimate reason for having their domain name, and that they are deliberately using it in bad faith.
"The whole etoy fiasco" would not have happened under these new rules.
--
Stay up hacking each weekend. Sleep is for the week.
I own the domain www.aevum.net, and "aevum" is Latin for "life".
I hope God doesn't use ICANN to make me forefit my domain. After all, the Bible was originally in Latin, and God did *ahem* invent life.
(it's late, i'm working, and i needed a goof break.)
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"Okay, who taught the cat how to type ctrl alt delete?"
KEy thing is that cases like this need to be treated on a case-by-case basis. There are many things that going into the name of a domain that are not necessarily readily apparent. Let's say I took the name "coffeehaus.com" as a site for amateur poetry distribution. Given that many coffee houses in the area here are cultural centers, this name is reasonable. If, afterwards, a company that calls itself "Coffeehaus Coffees", which sells coffee, and tries to take the domain name from the poetry site, there's no justification for it, because the poetry site is using the name "coffeehaus" in good faith. As long as ICANN makes decisions like this, they should work out.
That said, given how big business want ICANN to open up more TLDs only if they have the opportunity to get trademarked names first, I would argue that registering a domain name automatically gives you the copyright on that name assuming that there is no copyright in existance for your service. In the example above "coffeehaus" would automatically become a copyright for the owners of that domain, such that if Coffeehaus coffees wanted to try to dispute it, it comes down to when coffeehaus.com was registered vs when "Coffeehaus Coffees" was trademarks. Of course, I see some problems with this, and given the stance of big businesses this will never go through, but it should be a goal.
And I still stand by my belief that the DNS system is totally messed up and needs a total overhaul that includes limitations on what TLD you can register in among other things. Also, I would argue that a single entity (person, business, whatever), can only register up to 3 domains without question. After the 3rd, additional domains are registered based on a case-by-case business. Reasons for getting 4 or more domain names should NOT include trying to cover all the TLDs with your name, or blocking spelling mistakes, or whatnot. There are legit reasons, but implementing limits on the number of TLDs will help purge the overly expanded namespace, force businesses to use the 3rd (or 4th) component of the site's address (the machine name) to subdivide their web presence instead of spreading thin, and to educate users on what the various parts of a domain name are and represent, as to use it to their advantage when surfing. This would also kill cybersquatters dead and make cases like the above unnecessary.
end rant :-P
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
There have been many domain name matters which have been resolved. ICANN has them all here, listed by domain name, or here, by proceeding number, or even here, by commencement date.