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Back-Ordering Domain Names
gunner800 writes: "CNN.com has a decently-researched story about SnapNames, which offers a service to monitor domain expiration. Working with several registrars, they can purchase a domain name on your behalf as soon as it becomes available. Future plans include watching for registration of typos and 'malicious derivatives' (yournamesucks.com). My first thought was 'What if someone competes with SnapNames and offers the same 'back-order' service?'"
Is http://slashdotsucks.org registered?
The registrar keeps the domain on hold for a period, in which it is unavailable for purchase. Network Solutions have been criticised for doing a Sony Bono on the duration of this period.
y'know - i have a few domains that are about to be up for renewal, and have moved since i last had my nic handle address updated. been trying to get the address changes and it won't take. when i try to modify via the email form i get a response about 'consolidating multiple' handles for domains' when all i'm trying to alter is changes the address on one handle so the invoice doesn't fall through the cracks. it'd been a while since i dealt with network solutions - i'm surprised it's become more of a hassle than before now that there's competition. bozos.
so their database called 'whois' is unique?
Snapnames.com have their own "Lawyers Area".
Seriously, I suspect that this is all either
- About suing Network Solutions for not releasing expired domains
- About Network Solutions making some good money off expiring domains
I just can't be arsed to trawl through their sites to try and fugure out if NS and Snapnames are connected.OR
Never underestimate the dark side of the Source
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Trademarks, service marks, and trade names have one particular reason for existing: to help to avoid customer confusion
I think that you will find that your perspective is a byproduct of the development in law, not such perspectives the cause of it.
In fact, if you think about it, your statement / opinion is tortological. You have to think of the sequence causal actions involved in creating a product : It is rather the vendor who decides a name for a product than a consumer who asks for a product of a certain type to be named such and such.
As I already mentioned, the legal form of trademark, derived in case law from the tort of deceipt.
US civil code, Title 15, Section 1125 cites, and its wording echoes this:
False designations of origin, false descriptions, and dilution forbidden.
(a) Civil Action
(1)Any person who Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
. .
When you say "When you suggest that International Business Machines, the current holder of the ibm.com domain name, has the right to sue for trademark infringement anyone who registers ibm.com, despite the availability caused by, say, a lapse in the domain registration by International Business Machines, you are falling for a line. I most assure you I am not.
The Federal Trademarks Act of 1995 cited the likelihood of consumer confusion as a means to protect _famous_ marques, in particular it introduced the effect of a larger legal footprint for such marques, such as IBM. Because the collateral value of being able to trade as IBM (and the cost of attaining such wide recognition) is so high , they have been afforded, along with, say Apple Computer, additional protection, against similar or confusing marques _in _any _line of business, and against anyone who seeks to represent a famous marque for their own benefit. Yes, you _could_ try to start a non - profit organisation called, shall we say Imbecilic Burocratic Morons, but obtaining someone else's means to their business would be an infringement and would create a liability for damages. By your argument you could imply that Gary Kremen, the original owner of sex.com should not have it returned. (see Wired's coverage.)
In the next section of your argument, you propose some things which are easily answered : "Why exactly does that IBM have this right? If there's a company in France with the registered French trademark Immeuble Baisemain that puts on a show about selling real-estate, and it's convenient for their customers to call them by a three letter acronym, why shouldn't they have as much right to the domain name as, say, International Business Machines? Can you seriously imagine that their website will confuse people into thinking that they provide computer hardware, software, and consulting services from International Business Machines? And if it somehow does, can't IBM U.S. just sue them?"
First up, IBM has that right because they used a marque to designate products which they maintained in the marketplace. With a high degree of certainty they began using the name when _no-one _else _ did. So we have a designator for a company. By using the marque, they made it distinct _of_their_own actions. To suggest that they should not benefit from this strikes me as unfair on any business.
Now for Immeuble Baisemain (ugh), as a registered marque, you have to ask the question : who has superior rights? For this you would look at the First Use in Commerce rules, and these would, in fact apply internationally, under, originally Treaty of Paris 1846, and - more up to date, US Code Title 15, Chapter 22, SubCh III, Sec 1126, (a).
Because you have not established precedence, or first use in commerce for your example, it is moot.
In so far as you imply that no confusion would exist if I tapped in www.ibm.com and got a French realtor and could not easily find IBM's site or any of my bookmarks to that (or neither could any of IBM's customers or intranet users), I suggest that that would in fact cause a *lot* of confusion. The effect would be tantamount to a stranger taking over your shop-front on main street. Customers would still come, but for all that advertising and promotion, money and goodwill you spent over the years saying "come to 1055 Main and Second for the best firkins in town", you'd have to redo, and *still* you'd loose some business, whatever you did.
"And if it somehow does, can't IBM U.S. just sue them?" - That's the whole point, I was merely showing the basis under which they rightly could.
"Now, modern "intellectual property" lawyers are trying to convince everyone that we should suddenly change everything and ignore the above. Of course, they aren't presenting it that way publicly. What they say is that they are protecting the "intellectual property" and trademark rights of their clients in the new electronic sphere. However, in their actions they are making preposterous claims, and unfortunately many people seem to be accepting their position uncritically
I've taken your paragraph out of sequence, because you were making unsupported and unrelated assertions in aid of your surrounding argument. There is no way that current lawers could easily overturn a history of case law and precedent. That does not preclude the possibility of political lobbying for interpretations, which is a separate and contentious topic. Now, if you are a lawyer employed by a company with a tenuous claim, it may be thought expediant to put out a little propoganda, the sort of which might give rise to the formation of opinions such as yours. However, that alone does not a case make (nor a rebuttal by logical reverse of the said lawyers' corporate polemic). Preposterous claims aside (which are common in times of rapid gain or exchange of wealth (think back to Vanderbilt's day)), the best response is to learn, know and practise the known law. If that doesn't work, you can _base _ on _ that a political response. That may appear to be the course of action you want to take, and whilst I may not endorse the specifics of what you say, debate is *sorely* needed and is one major reason for my long response.
Isn't it much more likely that the lawyers of the world are just stretching the law in this novel area as far as they think they can take it, simply because it is in their interest to provide their clients with the best possible outcome, justified or not?
I'm not so sure there is any "novel idea" involved, except money making. And, dammit, if I employ someone to work for me I sure as heck want them to support my interests. (although I should hope that my interests are properly justifiable before promulgating them).
Finally, I am pleased you agree that SnapNames may not be the best thing under the sun. But I am concerned that you baldly claim I have made such elementary and potentially damaging mistakes in my previous post. Your aside "(and there are plenty who do, you do not need to feel any shame)" is a very smart rhetorical device to imply I should admit (or imply I should admit this, to readers) that I am in fact elementarily mistaken. I don't think so.
Fight Spammers!
aww, They won't let my snap up snapnames.com when it comes up for renewal.
It won't stand up in court. If you grab a domain name with that sort of bad faith goal, you can't win in court.
I think it will come in handy for the people or organizations that wish to compete for a name but both have good faith reasons for doing so.
Defecation occurs.
What if this was available when Microsoft had forgotten to renew the hotmail domain? I mean could someone just have snagged it instead of renewing it (out of frustration for not getting thier own email) and stopped the millions of spams that hit our email boxen?Not sure if this is a good thing or not. The potential for abuse could be kind of high considering how many people are way too busy to moniter the status of expirations and the amount of expirations that occur daily at over 10,000 or so. It has been my experience that NSI holds on to domain names just to prevent this type of 'legitamate' domain hijacking.
Prospecting Stinks. Stop Wasting Time on Cold Calling.
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Its going to be interesting to guess where the bulk of SnapNames' busines is going to come from.
Now if you think that they are going to have lots of lucrative business from big corporations, I ask you this : just how many large outfits with a big web presence (yeah, Hotmail aside) are *not* on the ball wrt their domain properties and the intellectual property and trademark rights which may apply to them?
Now whilst there have been a number of instances of _registered_ trademark owners expanding their name spaces over innocent registrants of similar names, for _registered_ trademarks which are _famous_ , action against confusingly similar names by those with an established presence is an intelligable component of the law.
Registered, Federal or national trademark or not, if you have a business name or domain through which you conduct trade, you will likely have acquired common law trademark rights thru use.
Now both the Federal type registrations as well as the common law aspects of trademark have basis in "passing off" (imitating to obtain a competitor's business) and these laws themselves derive from the tort of deceit.
If a party willingly and knowingly assists another party in infringing actions, the infringed party is able to bring suit against the body or agency who made this "assist" on the basis they have made a contributory infringement.
This works in much the same way as if you send me a warez copy of Office2000 and I publish it on my website, I am also responsible by my actions to infringe the copyright of the owner. (this is a very blunt analogy, but the specific differences are a very long post).
I see some difficulties with SnapNames' modus operandi :
Firstly, the "Snap-shot" monitoring service, for which the first 20 monitored names are free (therafter $20 per 100). Now, if I am Big Corp A and I have say a few important domains, exactly how does this benefit me? This many is easy to monitor, and in any case it is no hardship to ensure renewals happen well in advance of expiry, and for long periods. SnapNames makes no money here. In fact SnapNames makes nothing out of this monitoring service until someone wants 120 names watched for status. How many people have legitimate rights over 120 names? I know some porn redirector operators own thousands, but seriously, is that really SnapNames target market? And for anyone else, is a random sample of 120 names not going to have residual rights in trademark, common law or registered, remaining with previous owners. It may be that SnapNames are making a statistical play, and I have not the data to see their justifications.
Now to their "SnapBack" service, for which I'll quote their FAQ :
7. How do I use Snap-Back to "back order" a domain name? You can use the Snap-Back service to give yourself a second chance to acquire a domain name that you would like to own but is currently registered to someone else. Please note that our service does not and never will take a domain name away from a current registrant. However, you can still sign up for Snap-Back on that name and if it ever becomes available, it gives you the best available assurance of being the first one to acquire it. In effect, you have back ordered the name in case it ever becomes available
I am not too sure the disclaimer : ". Please note that our service does not and never will take a domain name away from a current registrant. " is really adequate.
The idea is that a desirable domain falls off a registry and becomes available (other posters have already covered whether this will actually happen or not), and then SnapNames will run an automatic registration of that domain for you.
What this does not take into account, where say there are trademark rights applicable to the "fallen" domain, is that abandonment of a domain registration does not constitute abandonment of a marque. It *is* possible for large companies to slip up, but that by no means suggests that IBM would have given up any associated rights to www.IBM.com because the trademark laws say that you abandon a marque only when you stop using it, or when you stop policing it, if it is a Federal registered trademark. Now for IBM to somehow simultaneously stop using its marque on all products as it "drops" its domain, _as well_ as to choose not to file suit for return of its domain citing trademark law, isto be far fetched.
Essentially I think, even without recourse to the inner workings of trademarks, domains and related law, that SnapNames is an incitement to infringe, and the company may find itself embroiled in the middle of some nasty disputes in the future. Obviously I hope otherwise, just as I would hope that people would look and think before claiming rights on trademarks (interestingly there is very onerous code requiring possible trademark registrants to look under every stone for possible superior rights, but that is another story altogether). Having thought of that, would not making a standing application to buy a trademarked domain actually be a form of claim in itself?
It's nice that SnapNames makes a thing of being useful to lawers. If I were entrusted with maintaining a client's domain, I'd be pretty sure to make it so I *don't* need SnapNames' services. The very lack of legal actual substance on their site, together with promised "ongoing education" (like it doesn't take a few years to learn the subject, and any professional will have an eye the case law databases almost continuously) leads me to think that angle is just a smokescreen.
In light of Network Solution's recent behaviour in not releasing domain names after they expire, I can't see how this service is going to work too well. Looks to me like it'll be a big flag to NetSol that here's a bunch of popular names that people are queuing up for. I made the mistake of letting an old domain 'expire' so that I could switch it to a new registrar. Big mistake. After dealing with the slack-jawed morons that answer NetSol's email ("That domain is still unavailable." Well no shit, Sherlock. It hasn't been paid for in months. FIX YOUR RECORDS), it took 6 months before it finally was released. How's SnapNames going to hop on an 'expired' name that remains unavailable for months? And are they going to refund my money if someone else manages to beat them to it?
That's what I think is missing in the current debate about domain expiration: why can't we question the whole enterprise altogether? If you own a plot of land in the real world, then that plot of land is yours forever, no matter what you do to it and no matter what others may want to do with it instead, until you sell it. Why shouldn't it be the same with domain names? It's not as though Coca Cola is going to disappear overnight any time soon, and whoever buys them out if they do would want to keep both the trademarks and the domain names.
What we need is not a system of forced-expiration but a system of monitored and centralized *sales* of unwanted domains. If people no longer want their old domains, then they could put them up for sale to the highest bidder, and people *would* do it, since they're not deriving much benefit from their unused domains any more than people derive benefit from vacant plots of land. And a system of *voluntary* conferral of deeds to domain names would be much more consistent with the libertarian ideals of property that our nation was founded on. It'd be a shame to turn our backs on the founding fathers and their universal and perpetual principles of government now, just because we happen to be in the "new millennium" -- their ideas apply now as much as ever.
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Does anyone actually have a Java program designed to control air traffic, or for the operation of a nuclear facility?