Industry scuttlebutt has it that a fairly large multifaceted legal action is coming down the chute involving, potentially, scores of litigants and defendants, multiple domain registrars and registrants. As I understand the matter, it will seek to make a federal case out of folks who have tasted names using an active parking page to monetize Trademark typo domains which were held and monetized during the short term 5 day grace period before being deleted.. or deleted and re-registered… This has been brewing for some time but I’ve chosen to blog about it now because the word is out in the community – several outsiders are now chatting about what will surely be a messy situation.
If you don’t deliberately/accidentally taste and monetize large swaths of trademark typo domains you should be fine.. But if you’re a retail registrant who has names at an ICANN accredited registrar where large-scale tasting has occurred, you may have issues with that registrar.. This could potentially turn into a mess for ICANN if a Registerfly situation occurs where innocent retail registrants are caught up within a registrar which starts to implode as a result of legal action stemming from this mess. It would be unfortunate if a registrar is somehow taken down (hardware seized etc) and can’t function for a some period of time, or can’t serve it’s retail registrants.
The stage has been setting for a larger battle relating to domain-tasting and may have been avoided if tasters had not activated and monetized during the 5 day grace period or if they had pre-screened large swaths of overt typos.. keeping only generic typos or longertail generics.
Of course, none of this speaks to the inequity of error search traffic which acts in precisely the same manner as the typo domain names targeted in this action.. Unfortunately for all legitimate registrants, it is much easier for litigants today to pursue an action related to domain names than it is to pursue an action related to ill-gotten error traffic taken via ISP or Browser. That will be a story for another day. If anything, this serves as a harbinger of things to come. The lines of “right” and “wrong” related to monetizing error traffic and trademark-intent traffic are being defined for us.. The writing is on the wall.
I suspect it would be unlikey that a registrar would be taken down or seized for evidence, when it would impact ecommerce on a large scale for all registrants… impacting the ones that have nothing to do with domain tasting, or trademark violations.
I’m sure whatever occurs, there will be some sensitivity to not severely damaging the online economy. the liability of that kind of action would be too enormous.
So you’re saying a lot of valueable, high-traffic typos may be released soon!?!…
***FS*** Ha ha.. a born optimist.
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Not so sure that registrars will go unscathed. One of the things that could be a problem for them is the WhoIs data they are required to have. VeriSign has been able to be protected from most trademark lawsuits because they are only required to hold the “Thin” data.(Registrar, Nameservers, Dates) Registrars are required to have the “Thick” registrant data. They knkow who the registrants are. What might soon happen (via a lawsuit or court ruling) is that Registrars might have to filter domain registrations against some sort of “Master List” of TMs–a nightmare, I am sure.
This might also be a new business opportunity for the Registries (VeriSign are you listening?) to sell companies who want to get on that list (with proof) and stop the registrations at that level rather than registrars. Thoughts?
***FS*** The results of these as yet unannounced suits will shape the direction of what products or services might come to be.
I look forward to reading the lawsuit once it’s filed. I’m really interested in the jurisdictional issues and how damages will be calculated.
***FS*** Agree.. I understand there are some interesting potential constitutional issues relating to scope/magnitude of damages etc..
Much bigger than Vulcan Golf’s suit, eh? Also looking forward to reading about it if it indeed pushes through.
Parties like Maltuzi and maybe DomainSponsor might get hit. But if those complainants lose that potential civil suit, interesting to see what the registrars involved will do afterwards.
Federalising the problem could be very messy indeed and it would point to a lot of high profile companies with the money for expensive lobbyists being involved. What would happen if registrars did not have the money to contest a case? And with some registrars being non-US, could it force ICANN to terminate its agreements with these registrars?
There are so many potential angles for a crafty lawyer to exploit that this action, moreso than tasting itself, could have a destablilising effect on the net. Checking domains against a database of trademarks is easy – proving the intent of the registrant is something completely different. And what would be ICANN’s liability for facilitating such activity? It is not like the people in ICANN were ignorant of what was going on.
Seems like there’s a inherent contradiction between trademarks (which are intended to be shared) and domain names (which aren’t).
…probably best then for those w/names w/any of the defendants to renew early…
[...] reported a few weeks ago this is a very thorough action targeting certain practices and [...]