LEGAL

Cyber Squatting

Cyber Squatting, is not the latest hernia-causing health club wheeze nor a home workout video advertised by some television has-been. It's the practice of registering someone else's trademark as a domain name. This is done by the ``cyber squatter" in order to sell the domain name back to the rightful trademark owner, naturally at a outrageous mark-up. Large companies with established brand identity and trademarks too slow to register their trademarks as domains saw their trademarks held hostage by any person who had $70.00 to slop down and an ounce of forethought.

According to ICANN these disputes can be resolved one of three ways: 1. amicably by the disputing parties; (yeah, right), 2. by the Courts (lawyers like this option) or 3. ICANN's mandatory arbitration program where the loser pays the victor's costs. However, in each of these options the alleged cyber squatter is permitted to use the domain until the dispute is completely resolved either by a court order or an arbitrators ruling.

ICANN's dispute resolution policy is known as the Uniform Domain Name Dispute Resolution Policy (UDRP). If you are feeling scholarly, you can check the whole text of the UDRP.

One legislative tool that trademark owners have used to fight cyber squatting is the Federal Trademark Dilution Act. (See 15 U.S.C. § 1125(c)). In order to carry their burden under the Federal Trademark Dilution Act a trademark owner must prove:

it's trademark is famous;
the squatter's use is to make money; and
the squatter's use is likely to cause a dilution.

However, this only led to more fun arguments of who or what is ``famous" and what truly is ``dilution?" Not to worry, Congress came to the rescue once again. This time with the Anti-Cybersquatting Act. 15 U.S.C. § 1125 (d). Penalties include fines from $1,000 to $100,000 and/or forfeiture of the domain. This piece of legislation protects trademark owners from any person who,

in bad faith registers an Internet domain name(s),
that is/are identical or confusingly similar to a trademark.

What's ``bad faith" you may ask? Well, like pornography, you know it when you see it. However, here are some aspects the Courts examine when deciding bad faith:

Was there an intent to divert traffic from a trademark holder's site for commercial gain or to denigrate the trademark;
Has the squatter attempted to sell the domain name without ever attempting to use it to transact business;
Does the squatter own other domain names that are similar to other established trademarks; and
Is the trademark considered distinctive or famous.

Not that any of our upstanding readers, would ever be tempted to do something like cybersquat, but just in case they know someone who would, here's a relatively simple rule: if someone is already using a trademark, don't try to slap a ``www." and a ``.com" around it to make a buck.

Here's another great scam from our friends that don't know how to use their creative powers for good - Typo Squatting. These wonderful people are not actually cyber squatting on a domain name per se, they just don't know how to spell or punctuate, albeit in a very convenient way. These smarty-pants register popular domains with a common, easily made typographical error. An example is someone registering www.tanedfeet.com or www.tanfeet.com in an attempt to divert traffic from the sheer genius available at www..

It gets better. Instead of registering spelling errors, some incorrigibles are even registering punctuation errors or slight syntax variations of well-known sites, in an effort to steal someone else's traffic. An example would be someone trying to register www.tannedfeetcom, (without the ``." before com) or www.tanned-feet.com.

At the time of this writing there have been no specific statutes or legislation enacted to deal precisely with typo squatting. However, there has been a significant body of case law developing on the issue. The vast majority of these decisions are clearly in favor of the legitimate domain owner. Most typo squatting claims are filed as general dilution claims and treated accordingly.

How about a game of ``tag you're it." Not the tag you played as a kid, it's the Internet age folks so now we play with ``meta tag." You can't know the players with out a program, so lets start out with what a meta tag is. A meta tag is piece of computer code that search engines use to classify and find web pages. Metaphorically speaking, meta tags are the landmarks that search engines use to get around the Internet map and thereby get the user to the appropriate. They are not published or read by people in the traditional sense, meta tags are read by computers.

The scam that evolved was to code some one else's trademark into the meta tags for an alternative site that was unrelated or was even in competition with the proper trademark. The result would be, that when a user would type a trademarked name into a search engine to reach the proper trademark holder, they would end up at some alternative, deceptive site. Yes, Sun Tzu would be proud . . . deception, subjugation, and deceit at its best!

Don't worry the lawyers have earned their keep on this one. The Courts have consistently ruled that the rightful owner can win this meta tag game by showing:

The infringing site is using another's trademark in their meta tags, and
The trademark has no relation to the infringing site, and
The trademark/meta tag is being used for the purpose of drawing attention to the infringing site.

The question remains, how to stop the scourge of the intellectual property world from violating the trademarks of the rightful owners. What to do? What to do?

Nevertheless, like the wise old saying goes, ``An ounce of prevention is worth a terabyte of cure." The best way to stop this cyber thievery is to prevent it. In simple terms, register your domain name and trademark every which way you---or some null op dork with a modem and $100 for a domain registration---can possibly think of.

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