It Could Happen To You - Part 2 by Elena Fawkner
3. KNOW YOUR RIGHTS
=> Domain Name Registrations Generally
As a general rule, you can register any domain name that is not
already registered (subject to trademark considerations discussed
below). If your domain name is sufficiently distinctive, for example,
jtdbizopps.com, the bit before the .com may also be a common law
trademark (unless, of course, it’s registered and then it’s a registered
trademark). If you DO have a distinctive domain name, then the
discussion in the next section applies to you.
If you don’t have a distinctive domain name, however, and by this
I mean a name that is “descriptive” or in general usage, for example,
“home-business.com”, then this name will be neither a common law
trademark nor a registrable trademark.
In this case, once you’ve lost your domain name registration,
you are, not to put too fine a point on it, screwed. You don’t have
much in the way of recourse other than for the “generic” legal
avenues which may well be too expensive for you to pursue.
These avenues are discussed below.
=> Domain Names and Trademarks
On the other hand, if you have a distinctive domain name (i.e.,
one that is not in common usage), then that name is also
likely to be a common law trademark (unless, as stated above,
you’ve registered it, in which case it’s a registered trademark.
And, if you do have a common law trademark, I would recommend
that you register it. Registration can only strengthen your
position.)
The law generally sides with the pre-existing trademark owner
over the domain name holder. In addition, the U.S. has
enacted the federal Anti-Cybersquatting Consumer Protection
Act (the “Act”). Under the Act, you can sue a cybersquatter to
get back your domain name and sometimes damages to boot.
So, what’s actionable under the Act? Here’s an extract from
the Act itself:
“A person shall be liable in a civil action by the owner of a mark,
including a personal name which is protected as a mark ... if,
without regard to the goods or services of the parties, that person
(i) has a bad faith intent to profit from that mark ...; and
(ii) registers, traffics in, or uses a domain name that
(I) in the case of a mark that is distinctive at the time of registration
of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of
registration of the domain name, is identical or confusingly similar
to or dilutive of that mark; or
(III) is a [registered] trademark ...”
In terms of what constitutes “bad faith”, the Act provides that the
court may consider factors (among others) such as:
“The person’s [i.e., the alleged cybersquatter’s] intent to divert
customers from the mark owner’s online location to a site
accessible under the domain name that could harm the goodwill
represented by the mark, either for commercial gain or with the
intent to disparage the mark, by creating a likelihood of confusion
as to the source, sponsorship, affiliation, or endorsement of the
site; and
“the person’s offer to transfer, sell, or otherwise assign the domain
name to the mark owner or any third party for financial gain without
having used, or having an intent to use, the domain name in the
bona fide offering of any goods or services, or the person’s prior
conduct indicating a pattern of such conduct.”
A common problem is identifying the culprit. In Jan Tallent-
Dandridge’s case, for example, the only information about the
perpetrator is:
offers@NameRegister.com
Registrant:
Dave Web (JTDBIZOPPS-COM-DOM)
Buy This Domain
5 Tpagrichnery St ., # 33
Yerevan, Armenia 375010
AM
208.978.3555
208.978.3555
offers@NameRegister.com
Call me skeptical, but somehow I doubt that’s a real name and
address. Fortunately, the Act has anticipated this problem:
“The owner of a mark may file an in rem civil action against
a domain name [an “in rem” proceeding is an action against the
thing rather than against a defendant - in this context, it means
that the court can make an order in relation to the domain name
itself rather than against Dave Web personally such as ordering
him to surrender the domain name] ... “.
And as for remedies, assuming you are able to identify your
particular scumbag, these include injunctions and damages
(either actual or, in a case where your individual name is at
issue, statutory damages of between $1,000 and $100,000
per domain name).
=> Generic Legal Avenues
Whether or not you can pursue an action under the Act, there
are a number of legal avenues open to anyone in Jan’s
situation (and by that, I mean, someone who is using the
domain name to point to a site that damages your reputation).
First off, let’s recognize this practice for what it is. Extortion.
Pure and simple. It’s a crime. So is criminal defamation.
Write a strongly worded cease and desist letter to the offender,
threatening to report them to the District Attorney and/or the
police and the Federal Trade Commission as well as instituting
a civil suit. You are more likely to get a result if the letter comes
from your attorney.
If the offender doesn’t comply, report them. As for what action
will be taken, your guess is as good as mine but at least you’ve
done what you can.
If you have the resources to do so, you can also bring civil
proceedings against the offender on the same grounds. The
conduct in question is egregious enough that you may well get
punitive damages awarded in your favor.
Finally, and I HATE to even suggest this, the most cost-effective
option of all may be to pay what is demanded. That at least gets
the domain name back under YOUR control where it belongs.
And there’s nothing to stop you turning around and reporting the
individual in question to the DA, police, FTC etc.. In fact, paying
over the money may be your best chance of identifying the
perpetrator so you can initiate a criminal prosecution.
Of course, all of this is damage control which is a VERY poor
substitute for prevention. So go back to Item 1. and calendar
your domain name due dates to avoid getting into this mess
in the first place.
Article Source: http://www.BharatBhasha.com
Article Url: http://www.bharatbhasha.com/domain-names.php/16903
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