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Chip Rosenthal Wins Unicom Domain Name Case
Seth Schoen writes "As seen last month,
Chip Rosenthal (whom many people know for
Reply-to
Munging Considered Harmful, among other projects) was threatened
with the loss of his domain
name unicom.com.
He's now won in court and
will get to keep the domain, at least for the time being."
Checked out his website, got a laugh out of it. Apparently during the case, he was using his website to keep us informed of the progress of the case. So, he was defending his right to keep his domain, on which he reported on the defending of his right to keep his domain, on which he reported on the defending......etc
-Space for rent
That the corp sueing him apparently didn't go through the ICANN name dispute resolution system? Interesting that they realize that ICANN has no real power in those sorts of disputes. Not that it's any surprise See this story from a year ago for another example of using the courts to avoid/overrule ICANN.
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Thanks for the support, Dino.
I think the decision goes beyond interesting, and really will be valuable. The jurisdiction question is an area of the law that needed clarification, and I'm really proud that we were able to do that. This decision will help shield the independent web publisher from "long arm" tactics, that would pull them into a long-distance lawsuit they couldn't fight.
(By the way ... I was sued in a Federal court, not State court. If they want to come back after me, they are going to have to come to Austin and do it.)
You are right that there were other matters in question, but once jursidiction was settled they all became moot. Somebody, someday, is going to have to litigate those issues too. (Hey, why you looking at me!!?!)
The U.S. Federal Aviation Administration defines the term UNICOM as the radio handle of the managing authority of an airport, usually the airport's Fixed Base Operator (FBO), the airport's local "service station." That use goes back to the earliest days of aviaton radio in the 1920s.
At O'Hare airport UNICOM is on the 122.95 frequency.
Fighting over the first use of the term UNICOM is like fighting over who owns "home page."
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There is a case to be made that there is nothing wrong with cybersquatting. From my point of view, its no different than when some smart investors back in the day bought lots of worthless land and held onto it because they knew eventually railroad companies would need it. Nothing wrong with that -- they had foresight, the railroad companies didn't. Similarly, a wise person today would buy land about a block back from the beachfront on California. Why? Because the average water line is advancing. In about 40 or so years, land that is now "beach front property" in California will be underwater and land that is now worthless and a little bit back, behind the current beachfront property, will be beachfront property. Nothing wrong with that either. In both of these cases, there is nothing wrong, even if the individual only bought the land to later sell it to the railroad company or hotel company at a high price.
, and has no intention of using it for any purpose, but only trying to extract maximal money, that's cybersquatting. But if they put up such a site and use it constructively -- i.e., perhaps they have their own organization/group abbreviated by "ORGANIZATION", or perhaps they with to criticize said organization, or perhaps they want to make it an informal "fan page" -- then its not cybersquatting and the company has no claim.
However, consider a reverse case. Consider if a smart large bank -- like JP Morgan and Co -- buys tons and tons of land, which is now cheap. Despite the land now being cheap, it will eventually be valuable, as the US population is increasing and more space will be required to house future populations. Once over-crowding starts occuring, and people experience the need to perhaps live on the inter-city land that populates our expressways/highways/throughways/whatever, the banks will be in prime-time position to sell that land at outrageous prices. That doesn't seem so fair, and for good reason. Why? Because it is the powerful using their resources to take advantage of the disempowered.
Though these cases are relevant to the internet-case of cybersquatting and reverse-cyber-squatting, they don't map directly. These cases deal with real-world examples, real world property. The internet is more metaphysical, abstract: in the realm of ideas.
(1) Cybersquatting is registering a domain name with no intent to use it, but simply the intent to use the name as leverage to get a company, organization, or person to buy it at the highest price possible; alternatively, the site may be used for some constructive purpose, but aa temporary location for that constructive purpose, with the end goal being using that domain name to extract maximum money from another entity.
a. Against a company. An example would be my registering the domain name www.ibm.org and never using it for anything, but simply hoping that IBM would pay you money to get the rights to it. This brings up an important point. As IBM already has a website -- ibm.com -- its claim to take that site from the original owner based solely on cybersquatting is diminished. IBM already has a recognizable domain name which will bring most people to it: in fact, the most recognizable domain name. Company.com is what you type as a standard to get to a companies home page. A case where the company would have a strong claim would be where it had no internet site before, and someone put up site wwww.company-that-previously-had-no-site.com, and put nothing on it, its clearly to extract money. However, if they put up such a site and provided a message board about company products, criticisms, etc, as well as information and hints from ppl who've bought their products, then its not cybersquatting and the organization has no claim.
b. Against an organization. For example, registering the domain name www.naral.net in hopes of extracting money from NARAL. Again, the same as above applies. NARAL has the most obvious most recognizable website for what they are, so their claim is diminished. But if someone puts up a site wwww.organization-that-previously-had-no-site.com
c. Against a person. This hasn't occured much yet, but it may in the future. For example person A, named John Doe, puts up a website named www.janedoe.com. He has no intention of using that website, but knows Jane Doe is rich and will eventually want to have her own website after her own name; so he simply holds onto the website, in hopes that eventually he can squeeze her. This is cybersquatting. But if another woman with the same name, Jane Doe, puts up a website and uses it, its not cybersquatting. Finally, if a company or organization puts up a website with a persons name -- unless it be an organization member -- that's cybersquatting. Organizations/companies have no business putting up sites named with people's name. The only exception would be if that person is a member of the organization, or if they want to use that person as a positive example; i.e., an anarchist organization putting up the domain name KattieSierra.com to honor her. There's nothign malevolent about that; though, of course, if she doesn't want it, she has the rights to claim it. Every individual should be able to claim a domain name named after them. In cases where individuals share the same first, middle, and last names, first come first serve (unless one David Cassidy puts up a website titled David Heinrich to try to extract money from all the other David Heinrich). These are the easy cases. What about the hard cases. What if someone who hates you puts up a website with your first, middle, and last name -- johnxdoe -- and spews about how much of a jerk you are, makes hateful remarks about you, and otherwise demeans you on the site. Or worse, what if said person puts up a website with your name and pretends to be you, except misrepresenting you? I think that these cases are unacceptable. And I realize that's iffy. If someone wants to put up a website trying to masquerade as me or insult me, they should have to in some way put "anti" or something similar in the address: i.e., www.antidavidheinrich.com. This is a minor restriction on freedom of speech which serves to prevent misrepresentation.
Now, back to the comparisons with people hoarding potential rail-road land back in the day, or buying "2nd tier" beach property in California. There is a clear difference between those cases and stategic registration of domain names. Those cases apply for physical property and must be strategically made; one can't simply buy all land. Furthermore, one is actually abstracting the real value the land will hold in the future. That property is in fact that valuable, and would cost that much to the hotels. But if I squat a domain name, the company might have to pay me a million dollars for something that would've costed only a few bucks otherwise.
Its not that I'm for big corporations. Its that this type of game-playing demeans the usefulness of the internet and domain names. And its not to say that big corporations don't play this game to.
Corporations usually don't engage in cybersquatting; though they could if they wanted to. Cybersquatting is really a riskless activity, as I believe it should be. Do you really want to fine someone or put them in jail for that? The worst that can happen is the person loses his domain name, and doesn't get to sell it to the corporation for a high price. But back to corporations -- what they do do is distort cybersquatting norms to allow them to strangle competition or prevent sites from displaying that are critical of them, and otherwise abuse domain-name norms.
A site opens up with the domain name, www.anti-riaa.com, and uses it to harsly criticize the RIAA. The RIAA sues for "cybersquatting". Plainly ludicrous. Cybersquatting implies that the "target" had the intent or motive to want to use the domain-name. The RIAA would never use that domain-name. Yet, they want to claim it in order to prevent criticism. This is a kind of reverse cybersquatting. It furthermore diminishes the functionality of domain names. People expect that if they type in such a domain name, they'll get a website against the RIAA, not a blank page.
Another case is where companies try to take away competing companies domain names, or individuals domain names based on "trademark similarlities". Prime example, Lindows.com. Do they really think that people will confuse Windows with Lindows? Most intelligent people wouldn't. But even if they would, that's not Lindows fault -- that's the fault of ppl who are so dumb. Furthermore, Lindows intent isn't to confuse people, making them think its an MS product. Its simply to let them know that it should work fine with MS software. If anyone is confused, they'll be straightened out once they look at the sight. More disturbing is the implication by MS that they have trademark rights to anything that rhymes with Windows, or if of a similar sound.
I think its obvious to most COMMON-SENSE people that something is or is not cybersquatting when they see it. But that ridiculous definition of "I'll know it when I see it" doesn't do. The public has a right to know EXACTLY is and is not acceptable; EXACTLY what is an is not, for example, "PORNOGRAPHY" (one of the more brilliant quotes by one of the 9 wise men, "I can't define it, but I'll know it when I see it"). If we cannot define precisely what is not an acceptable activity, we have no right to expect people not to do it. People need to know the rules of the game before they play. There's no reason why norms, laws, customs, etc can't be as precisely defined as the rules of chess.
For example, in chess, there are a few official rules, clearly defined, and there are also some "unofficial" rules which any two professionals understand:
(1) The official rules. I.e., how each piece moves, exceptions to the normal movement of pieces, conditions in which the king must move, stalemate conditions, and checkmate conditions.
(2) The unofficial rules. A typical set goes something like this: 1 You touch a piece, you have to move it; 2 No taking back moves; 3 No talking; 4 No motions, positions, etc that would distract the opponent and detract from his/her ability to think.
The rules in chess are clearly defined. There is no ambiguity.
The rules governing law and domain-name resolution should be the same: precisely clear. I will attempt to propose some here. I do not pretend that they are perfectly clear, nor that they are comprehensive. But I will try to make them as much so as I can. Obviously, a real set of rules needs to be thoroughly thought out. Each rule must be stated as clearly as possible, as elegantlty as possible, and with as few words as possible. There must be a sufficient number of rules to cover all "inappropriate activity". Here's my rough draft:
1. IF someone registers a domain name (entity-name.com) BEFORE entity-name does, assuming entity-name exists at the time of registration, AND that someone has no intent of using that domain name, but only trying to extract money from entity-name, THEN it is cybersquatting. The entity-name should be able to obtain entity-name.com from the cybersquatter at the price of domain-name registration.
2. IF someone registers a domain-name (entity-name.com) BEFORE entity-name does, AND actually uses it for some purpose, whether connected to the domain-name or not, AND has no intent of using it to extract money from entity-name, THEN that is not cybersquatting. Entity-name can always register the domain-name Entity_name.com.
3. IF someone registers a domain-name (entity-name.com) BEFORE entity-name does, AND uses it for some purpose, whether connected to the domain-name or not, BUT has the intent of never-the-less using it to extract money from entity-name, AND is thus simply using that "purpose" as a front, THEN that is cybersquatting. The individual can copy the web-site content to his hard drive and post it at another domain-name. Meanwhile, entity-name should be able to get entity-name.com from that individual by paying him the cost of registration.
4. IF someone registers a domain name (entity-name.com) before entity-name exists, THEN no matter the post-entity-name existance activity of that someone, it is not cybersquatting. Whether or not the indivual makes use of that domain-name, it is clearly not his intent to use the domain-name to extract money from entity-name. Simply because the person has not yet used entity-name.com by the time entity-name comes into existence does not mean the person should be deprived of his site. There has been no planned extortion. Should entity-name offer the individual money to get that domain-name, so be it.
5. IF entity-name already owns a domain-name (entity-name.com) AND an individual creates a site with a similar domain-name (i.e., entity_name.com), AND that individual's end intent is to extract money from entity-name for entity_name.com, THEN that is cybersquatting. However, entity-name hasn't as strong a claim to have the domain-name taken away. Entity-name already has the best domain name possible (as they themselves have affirmed by registering that as their domain-name). They have no real need obtain entity_name.com when they already have entity-name.com.
6. IF entity-name already has a domain-name (entity-name.com) AND an individual creates a similar domain-name (i.e., entity_name.com or anti-entity-name.com), AND uses that domain name either to offer useful information about entity-name from a member/customer's pov, or to criticize entity-name, THEN that is not cybersquatting. Entity-name has no claim to take away that domain-name.
7. Dormancy time limit. I believe that all "intellectual property" -- if we are to have such a draconian thing -- should last a maximum of five years. Thus, for non-users of a domain-name, the domain-name is automatically relinquished from their control after 5 years if they do nothing with it. "Nothing" is a very high standard. If an individual uses the domain name for nothing other than saying, "I like blah blah blah blah blah", then that is NOT nothing. Nothing means either no page has been put there, or its just been a "for sale" sign for 5 years, or its just been an "under construction" sign for 5 years.
8. Assumption of innocence. The party brining the complaint must prove beyond a reasonable doubt that the other has done what is alleged.
9. The power tilt modifier. Naturally, in resolving disputes, the balance should be tilted towards the side of the less powerful, as the less powerful is more likely to be the innocent side in any given case, and the side less able to defend itself. If the less powerful is the person bearing the complaints, then its tilted towards them. If the less powerful is the person brining the complaint, then its tilted towards them. This does not overturn rule #8, but only modifies it slightly.
social sciences can never use experience to verify their statemen
Trademarks can be registered on either the "principal" or the "supplemental" register. Trademarks on the principal register can be enforced against others. Trademarks on the supplemental register can't be enforced against others, but prevent others from claiming you are infringing their trademark. If your application for registration on the principal register is rejected, you can often get a registration on the supplementary register, for which the standards are lower. In particular, you can usually get a supplementary register trademark on a commonly used word, which is valuable for domain purposes.
Either way, you get to use the ® symbol, and you're protected against any trademark-related claims on a domain.