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?'"

Comments

the big 'what if' scenario...

[MousePotato]

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.

Contributory Trademark Infringement

[new500]

. .

Its going to be interesting to guess where the bulk of SnapNames' busines is going to come from.

Now if you think that they are going to have lots of lucrative business from big corporations, I ask you this : just how many large outfits with a big web presence (yeah, Hotmail aside) are *not* on the ball wrt their domain properties and the intellectual property and trademark rights which may apply to them?

Now whilst there have been a number of instances of _registered_ trademark owners expanding their name spaces over innocent registrants of similar names, for _registered_ trademarks which are _famous_ , action against confusingly similar names by those with an established presence is an intelligable component of the law.

Registered, Federal or national trademark or not, if you have a business name or domain through which you conduct trade, you will likely have acquired common law trademark rights thru use.

Now both the Federal type registrations as well as the common law aspects of trademark have basis in "passing off" (imitating to obtain a competitor's business) and these laws themselves derive from the tort of deceit.

If a party willingly and knowingly assists another party in infringing actions, the infringed party is able to bring suit against the body or agency who made this "assist" on the basis they have made a contributory infringement.

This works in much the same way as if you send me a warez copy of Office2000 and I publish it on my website, I am also responsible by my actions to infringe the copyright of the owner. (this is a very blunt analogy, but the specific differences are a very long post).

I see some difficulties with SnapNames' modus operandi :

Firstly, the "Snap-shot" monitoring service, for which the first 20 monitored names are free (therafter $20 per 100). Now, if I am Big Corp A and I have say a few important domains, exactly how does this benefit me? This many is easy to monitor, and in any case it is no hardship to ensure renewals happen well in advance of expiry, and for long periods. SnapNames makes no money here. In fact SnapNames makes nothing out of this monitoring service until someone wants 120 names watched for status. How many people have legitimate rights over 120 names? I know some porn redirector operators own thousands, but seriously, is that really SnapNames target market? And for anyone else, is a random sample of 120 names not going to have residual rights in trademark, common law or registered, remaining with previous owners. It may be that SnapNames are making a statistical play, and I have not the data to see their justifications.

Now to their "SnapBack" service, for which I'll quote their FAQ :

7. How do I use Snap-Back to "back order" a domain name? You can use the Snap-Back service to give yourself a second chance to acquire a domain name that you would like to own but is currently registered to someone else. Please note that our service does not and never will take a domain name away from a current registrant. However, you can still sign up for Snap-Back on that name and if it ever becomes available, it gives you the best available assurance of being the first one to acquire it. In effect, you have back ordered the name in case it ever becomes available

I am not too sure the disclaimer : ". Please note that our service does not and never will take a domain name away from a current registrant. " is really adequate.

The idea is that a desirable domain falls off a registry and becomes available (other posters have already covered whether this will actually happen or not), and then SnapNames will run an automatic registration of that domain for you.

What this does not take into account, where say there are trademark rights applicable to the "fallen" domain, is that abandonment of a domain registration does not constitute abandonment of a marque. It *is* possible for large companies to slip up, but that by no means suggests that IBM would have given up any associated rights to www.IBM.com because the trademark laws say that you abandon a marque only when you stop using it, or when you stop policing it, if it is a Federal registered trademark. Now for IBM to somehow simultaneously stop using its marque on all products as it "drops" its domain, _as well_ as to choose not to file suit for return of its domain citing trademark law, isto be far fetched.

Essentially I think, even without recourse to the inner workings of trademarks, domains and related law, that SnapNames is an incitement to infringe, and the company may find itself embroiled in the middle of some nasty disputes in the future. Obviously I hope otherwise, just as I would hope that people would look and think before claiming rights on trademarks (interestingly there is very onerous code requiring possible trademark registrants to look under every stone for possible superior rights, but that is another story altogether). Having thought of that, would not making a standing application to buy a trademarked domain actually be a form of claim in itself?

It's nice that SnapNames makes a thing of being useful to lawers. If I were entrusted with maintaining a client's domain, I'd be pretty sure to make it so I *don't* need SnapNames' services. The very lack of legal actual substance on their site, together with promised "ongoing education" (like it doesn't take a few years to learn the subject, and any professional will have an eye the case law databases almost continuously) leads me to think that angle is just a smokescreen.

Uh huh

[dodecahedron]

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?

Why should domains *ever* expire?

[Chuck Flynn]

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.

Re:Why should domains *ever* expire?

[JimDabell]

There is a flaw with your analogy: you aren't actually buying the domain name. You are paying a company to tell people where you want the domain to point to, over and over again.

A better analogy would be: it's like paying somebody who owns a plot of land on the corner of a street to put up a signpost telling everyone where you live.

Re:Why should domains *ever* expire?

[new500]

you aren't actually buying the domain name

In a sense you are, and you are not. What makes this confusing is you are buying an exclusive use of a domain on renewable terms with a period of contract defined therein. Actual ownership of a domain is subject to interpretaion of what a domain constitutes. IMO, absolute ownership would not be clear until you have rights such that neither a registrar nor any root server owner nor anyone else may alter or interfere with the domain name you registered and corresponding DNS entries, in perpetuity.

If you would like to register a domain wherein the contract with the registrar confers you explicit title in ownership (albeit, once again the derivative rights from that are unclear and subject to interpretation) take a look at Gandi.net who have Terms and conditions in contract which appear very favourable to the registrant.

A more philosophical way to look at this is ask yourself, if you are a home owner, whether you own that house outright, or if, as is usual, the deeds are owned by your mortgage lender and you will be paying them interest on a loan for any number of years to come. Many aspects of control derive from lend or lease variations, see Marx for some good rants.

hmm....

[slashdoter]

I think I'll sign up for Slashdot.org, maybe taco will get a little cought up in a game of TF2, Diablo III or whatevers out when the domain expires. muhhahahhha let the ransom money roll in! If not I rederect to goatse.cx, that would be the best Troll ever, I can hardly contain myself.

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