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