Cybersquatting and individuals

[Timothe Litt]

There has been a lot of consideration of the rights of trademark owners in
domain names, both in general and on this list.

I haven't seen the corresponding consideration given to the rights of
non-commercial individuals; in fact the latest version of the ICANN UDRP
that I can find (http://www.icann.org/en/udrp/udrp-policy-24oct99.htm) is
silent on this issue.

Yet it seems that 15 USC 1129 (see
http://www.bitlaw.com/source/15usc/1129.html) offers some protection to
(some) individuals.  (Some references say this only applies to "famous"
individuals; and U.S. law is restricted to the U.S.)

I can see where this can be made a complex issue - e.g. family names, not to
mention variations thereof are hardly unique.  Although in the trademark
cases, "first come first serve" has been a successful tie-breaker some of
the time.

Here's a concrete example that (re-)piqued my interest.  I own and have used
example.net for some years, and would like to also have example.com.  (Where
'example' is actually a variation of my family name.)  It turns out that the
.com address is held by a cybersquatter.  That is, someone WHOIS says owns
many, many names, has been on the losing end of many UDRP commercial
arbitrations, has changed the name of his company several times, and has an
address that google earth shows to be an apartment over a Mailboxes ETC
store in England.  Oh, and who doesn't respond to e-mail, even though there
is a website on www.example.com that says "this domain may be for sale".  So
it would seem that the provisions of 15 USC 1129 would apply.  But that
requires a civil action - hardly reasonable for an individual.  Especially
since I'm in the U.S. - so unless there's equivalent law in the U.K.,
there's really no protection at all - at any price!

I think NCUC should advocate for some reasonable set of rules that define
and protect individuals' rights in domain names that parallel those of
trademark owners.  I'm not saying that the rules must produce a favorable
outcome for my example (though it would be nice).  But it does seem to me
that ICANN's current omission of any provision for individuals' rights in
domain names is a real issue for this group.  Individuals are in our field
of membership, and can not obtain a trademark unless they intend to use that
mark in commerce.  (Not to mention the cost.)

Other opinions?  Anyone care to take a stab at what "reasonable rules" might
be?

I also wonder whether there is a public policy argument that (a) domain
names are a public resource and (b) a registrant who's sole purpose for
registration of a name is to re-sell it represents an inferior use to that
of a registrant who has a direct use for it.  (Not necessarily a website, by
the way.)  That's probably a larger can of worms, but it might be an
approach to consider when discussing whether cybersquatting has redeeming
social value...

By the way, I don't mean to restrict my comments to family names - among
others, boat names, pet names, personal slogans, political statements are
all reasonable things for individuals to want as their domain names.

Timothe Litt
ACM Distinguished Engineer

(Previously used tlhackque at yahoo.com for e-mail on this list.)
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