Cybersquatting and individuals

[Nicolas Adam]

Dear Timothe,

I'll have a stab, if only to get things started.

I just can't seem to imagine a scheme where some form of udrp or 
international law could institutionalize a proper allocating mechanism 
that would both alleviate cybersquatting *and* be true to the principle 
that meanings and names ― by virtue of their ambiguity, general-ness, 
etc. ― shouldn't be subjected to a property rights regime that 
inevitably (and arbitrarily) assigns exclusiveness, even for a specific 
use. They say "hard case make bad law", and this is one such example. 
But, by all means, if someone sharper than I sees a good law for such a 
hard case, i will be happy to consider it.

I haphazardly suggested a few days ago that a time-delay before a domain 
name could be resold might take care of some front running/tasting 
problems by rendering likely that the legitimate user, placed in a 
situation where its ideal (or first-querried) name is registered by a 
front-running operation, would decide to create some other domain name 
that would suit him rather then wait out for its original query to be 
available.

Admittedly, this does not take care of all cybersquatting issues which, 
for the purpose of this discussion, i will grant are all instances of 
inferior value for a domain name. As you say, working out the details of 
the proper market to institutionalize is the larger can of worms.

I would say that part of the solution to cybersquatting-in-general would 
be in the perpetual enlargement of the tld space, so that names squatted 
need not be recouped but could rather be bypassed. This solution 
requires people to imagine a tld space where .com is not the sole 
repository of value. In order for an enlargement scheme to have an 
impact, the initial enlargement would have to be substantial, and the 
policy for further enlargement should also be clear, predictable, and 
relatively burden-less so that would-be cybersquatters could see right 
away that there is no value to be extracted in the new scheme of things.

I would be tempted to have such a policy accompanied by the combination 
of a "first-come, first served" norm that *could* (but needn't) be 
implemented by the innovating registrar. If, for example, ACM would run 
the .acm, then it could decide if it would hand out the TimotheLitt.acm 
to me (or keept it for you).

One of the things that this does is to put the litigation at the level 
of the tld (preferably, before it is attributed to a registrar), rather 
than at the level of the individual gunning for a specific second or 
third-level name.

I'm sure there will be more cognizant people on this list who will have 
some other ideas. Also, please feel free to demolish the above.

Take care,

Nicolas

On 05/04/2011 12:01 PM, Timothe Litt wrote:
> 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.)
> ---------------------------------------------------------
> This communication may not represent the ACM or my employer's views,
> if any, on the matters discussed.
>
>