Sunday, December 14, 2008

Is cybersquatting against the law?

[Perkins Coie and Mark Zandberg discuss "cybersquatting" in PC-1, MZ-1, PC-2, MZ-2, PC-3.]

When is it OK to buy up an expired domain name?
By Christopher Beam

The George W. Bush Library Foundation has
retrieved its domain name. A small Internet company had bought for less than $10 after it expired and then sold it back it to the library for $35,000. Is that legal?

Probably not. Cybersquatting, the practice of buying up a domain in order to profit from a trademarked name, is prohibited under the 1999
Anticybersquatting Consumer Protection Act as well as a set of international guidelines called the Uniform Domain-Name Dispute-Resolution Policy. (Disputes are usually mediated by the National Arbitration Forum or the U.N.'s World Intellectual Property Organization.) Both systems were created to protect companies, celebrities, and even Joe Schmoes from having their names exploited online for commercial purposes. To sue someone for cybersquatting, you have to show that they acted in "bad faith," meaning they deliberately registered a certain domain in order to profit off your name. For example, if someone buys and puts ads up to generate income from random visitors, that's considered bad faith. Same with trying to sell the site back to its rightful owner for a hefty profit, as in the case of the presidential library. (An example of "good faith," meanwhile, might be registering as a nonprofit repository for articles about the president.)

There may be added protection for domains that are named after celebrities. In most states, famous people have a
right of publicity that prohibits anyone else from profiting off their names or personas. Celebrities can also argue that they have common law rights to the trademark of their own names. In 2000, Madonna won a lawsuit against a cybersquatter who had bought and set up a porn site. (The same guy registered, among other names, Likewise, Hillary Clinton won a case in 2005 against an Italian woman who had bought the domain name (See a list of domain name disputes here.)

The First Amendment makes it legal to grab even a famous person's domain name in some situations: You might not get, but you could register if you're planning to use it for nonprofit political speech. You may also be able to use an established name if you're setting up your own, unrelated company. If the domain name for Delta Airlines expired and you bought it up for your competing airline, that would be against the law. But if you were promoting a very different kind of company—Delta Plumbing, for example—then you'd be within your rights to use As long as you're not profiting off a person or company by misrepresenting them, you're probably OK.

Indeed, there's a whole industry of so-called domain "tasting," whereby companies buy up recently expired domain names, test their traffic ratings, and estimate their profitability. (Sites like and will tell you when certain domain names are about to expire.) If a site is deemed a moneymaker, the company will hold on to it. If it's not, the company will give it back within the five-day grace period. The practice is legally restricted to domain names that use words you can find in the dictionary. But some companies will buy up variations or misspellings of other well-known sites—like, say, Those sites aren't legal, but they can still turn a profit before the trademarked party notices.

Got a question about today's news?
Ask the Explainer.

Explainer thanks Enrico Schaefer of Traverse Legal and Hank Burgoyne of Kronenberger Burgoyne.

Christopher Beam is a Slate political reporter.
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Anonymous said...

As always, thank you Mark for adding a bit of fun to an otherwise dreary day. I'm tired of watching TV reports of non-snow on top of Queen Anne hill and in West Seattle. Let's pray for a quarter inch of snow tomorrow and shut down the whole, gosh darn district!

Anonymous said...

Who the heck is "Ask the explainer @"?

Anonymous said...

Cathy, is asking for peace of mind.

Anonymous said...

I'd like to grant Cathy peace of mind. Maybe I will consider that when she can exhibit using a piece of mind. Tell the Hamster in her head to bear some of the responsibility. Don't tell me he lives up there rent free?

Anonymous said...

Please read Nicks new Email!

Rick Jorgensen said...

(Apologies in advance for the shrill tone forthcoming)

Will someone, ANYONE, give me a reasonable explanation that supports a reason that the district is sending so much of our kids money to "protect" the "intellectual property" of the School District over a WEB ADDRESS!

I mean for heavens sake! The only POSSIBLE reason would be to attempt to silence Mark. Is Marla so technologically naive to think that a different NAME could be created in about - oh - 5 minutes?

I'm very glad that Mark was able to post the communications. It shows that the District values the "intellectual property" of a web address so much more than things like reducing class size or better supporting materials for our teachers, or (MUST I go on????)

Anonymous said...

Yeah. At one point we were told that any curriculum that we generated as part of our job was the intellectual property of, and belonged to, the District. Reality? Scare tactics? Considering the timing of the announcement, it felt like another attempt to keep the natives down and under control.

"Control" is the key word. There seems to be no room for individual thought; it seems that one must tow the party line or leave. Independent thinkers who cannot be controled must be eliminated. Independent thinkers are pretty scary to a control freak(s).