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Domain CyberSquatting

SITUATION:

An attempt at registering your business's name as a domain name revealed that the domain name was taken.  The domain name was purchased 2 years ago and there is no website at the domain. 

Your company may be a victim of cybersquatting: 

Cybersquatting means registering, selling or using a domain name with the intent of profiting from the goodwill of someone else's trademark. It generally refers to the practice of buying up domain names that use the names of existing businesses with the intent to sell the names for a profit to those businesses. 

WHAT TO DO:

You have a few options. 

  • The easiest thing to do is try different alterations on your chosen name. If you're using .com with the name, could you use .org, .net, .biz or .info? Or, could you vary the name slightly from your exact business name? For instance, if you have a pet store called Ray's pets, could you try rayspetsupplies.com instead of rayspets.com? 
  • Or, try a whole different name.

If you truly feel that you are a victim of Cybersquatting:

  • Before jumping to any conclusions, contact the domain name registrant. To find the name and address of a domain name owner, you can use the "WHOIS Lookup" at whois.net. Find out whether there is a reasonable explanation for the use of the domain name, or if the registrant is willing to sell you the name at a price you are willing to pay. 
  • Remember, the fact that a website is not up and running, even months after the name was reserved or registered, does not necessarily mean that the registrant doesn't have perfectly legitimate plans to have a website in the future. 
  • Sometimes, you may find that paying the cybersquatter is the easiest choice. It may be a lot cheaper and quicker for you to come to terms with a squatter than to file a lawsuit or initiate an arbitration hearing: these processes cost money, and although you may be able to recover your costs and attorney fees if you win, there is no guarantee; it's completely up to the judge. 

What You Can Do to Fight a Cybersquatter

A victim of cybersquatting in the United States can now sue under the provisions of the Anticybersquatting Consumer Protection Act (ACPA) or can fight the cybersquatter using an international arbitration system created by the Internet Corporation of Assigned Names and Numbers (ICANN).

The ACPA defines cybersquatting as registering, trafficking in or using a domain name with the intent to profit in bad faith from the goodwill of a trademark belonging to someone else. The ICANN arbitration system is considered by trademark experts to be faster and less expensive than suing under the ACPA, and the procedure does not require an attorney. 

Fighting Under the ACPA

In order to stop a cybersquatter, the trademark owner must prove all of the following:

  • the domain name registrant had a bad-faith intent to profit from the trademark
  • the trademark was distinctive at the time the domain name was first registered
  • the domain name is identical or confusingly similar to the trademark, and
  • the trademark qualifies for protection under federal trademark laws -- that is, the trademark is distinctive and its owner was the first to use the trademark in commerce.

Using the ICANN Procedure

In 1999, after assuming control of domain name registration, ICANN adopted and began implementing the Uniform Domain Name Dispute Resolution Policy (UDNDRP) a policy for resolution of domain name disputes. This international policy results in an arbitration of the dispute, not litigation. An action can be brought by any person who complains (referred to by ICANN as the "complainant") that:

  • a domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights
  • the domain name owner has no rights or legitimate interests in the domain name, and
  • the domain name has been registered and is being used in bad faith.

All of these elements must be established in order for the complainant to prevail. If the complainant prevails, the domain name will be canceled or transferred to the complainant, but financial remedies are not available under the UDNDRP. Information about initiating a complaint is provided at the ICANN website.










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