| 3. KNOW YOUR RIGHTS
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| | "the person's offer to transfer, sell, or
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| => Domain Name Registrations Generally
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| | otherwise assign the domainname to the
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| As a general rule, you can register any
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| | mark owner or any third party for
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| domain name that is notalready registered
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| | financial gain withouthaving used, or
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| (subject to trademark considerations
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| | having an intent to use, the domain name
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| discussedbelow). If your domain name is
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| | in thebona fide offering of any goods or
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| sufficiently distinctive, for
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| | services, or the person's priorconduct
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| example,jtdbizopps.com, the bit before
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| | indicating a pattern of such conduct."
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| the .com may also be a common
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| | A common problem is identifying the
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| lawtrademark (unless, of course, it's
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| | culprit. In Jan Tallent-
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| registered and then it's a
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| | Dandridge's case, for example, the only
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| registeredtrademark). If you DO have a
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| | information about theperpetrator
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| distinctive domain name, then
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| | Registrant:
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| thediscussion in the next section applies
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| | Dave Web (JTDBIZOPPS-COM-DOM)
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| to you.
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| | Buy This Domain
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| If you don't have a distinctive domain
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| | 5 Tpagrichnery St ., # 33
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| name, however, and by this
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| | Yerevan, Armenia 375010
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| I mean a name that is "descriptive" or in
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| | AM
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| general usage, for example,
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| | 208.978.3555
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| "home-business.com", then this name will
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| | Call me skeptical, but somehow I doubt
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| be neither a common lawtrademark nor a
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| | that's a real name andaddress.
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| registrable trademark.
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| | Fortunately, the Act has anticipated this
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| In this case, once you've lost your
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| | problem:
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| domain name registration,you are, not to
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| | "The owner of a mark may file an in rem
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| put too fine a point on it, screwed. You
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| | civil action againsta domain name [an "in
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| don't havemuch in the way of recourse
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| | rem" proceeding is an action against
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| other than for the "generic" legalavenues
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| | thething rather than against a defendant
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| which may well be too expensive for you
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| | - in this context, it meansthat the court
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| to pursue.
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| | can make an order in relation to the
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| These avenues are discussed below.
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| | domain nameitself rather than against
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| => Domain Names and Trademarks
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| | Dave Web personally such as orderinghim
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| On the other hand, if you have a
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| | to surrender the domain name] ... ".
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| distinctive domain name (i.e.,one that is
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| | And as for remedies, assuming you are
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| not in common usage), then that name is
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| | able to identify yourparticular scumbag,
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| alsolikely to be a common law trademark
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| | these include injunctions and damages
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| (unless, as stated above,you've
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| | (either actual or, in a case where your
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| registered it, in which case it's a
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| | individual name is atissue, statutory
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| registered trademark.
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| | damages of between $1,000 and $100,000per
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| And, if you do have a common law
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| | domain name).
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| trademark, I would recommendthat you
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| | => Generic Legal Avenues
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| register it. Registration can only
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| | Whether or not you can pursue an action
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| strengthen yourposition.)
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| | under the Act, thereare a number of legal
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| The law generally sides with the
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| | avenues open to anyone in Jan'ssituation
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| pre-existing trademark ownerover the
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| | (and by that, I mean, someone who is
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| domain name holder. In addition, the U.S.
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| | using thedomain name to point to a site
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| hasenacted the federal
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| | that damages your reputation).
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| Anti-Cybersquatting Consumer Protection
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| | First off, let's recognize this practice
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| Act (the "Act"). Under the Act, you can
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| | for what it is. Extortion.
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| sue a cybersquatter toget back your
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| | Pure and simple. It's a crime. So is
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| domain name and sometimes damages to
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| | criminal defamation.
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| boot.
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| | Write a strongly worded cease and desist
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| So, what's actionable under the Act?
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| | letter to the offender,threatening to
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| Here's an extract fromthe Act itself:
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| | report them to the District Attorney and
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| "A person shall be liable in a civil
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| | or thepolice and the Federal Trade
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| action by the owner of a mark,including a
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| | Commission as well as institutinga civil
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| personal name which is protected as a
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| | suit. You are more likely to get a result
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| mark ... if,without regard to the goods
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| | if the letter comesfrom your attorney.
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| or services of the parties, that person
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| | If the offender doesn't comply, report
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| Â
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| | them. As for what actionwill be taken,
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| (i) has a bad faith intent to profit from
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| | your guess is as good as mine but at
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| that mark ...; and
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| | least you'vedone what you can.
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| (ii) registers, traffics in, or uses a
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| | If you have the resources to do so, you
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| domain name that Â
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| | can also bring civilproceedings against
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| (I) in the case of a mark that is
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| | the offender on the same grounds.
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| distinctive at the time of registrationof
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| | Theconduct in question is egregious
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| the domain name, is identical or
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| | enough that you may well getpunitive
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| confusingly similar to that mark;
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| | damages awarded in your favor.
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| (II) in the case of a famous mark that is
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| | Finally, and I HATE to even suggest this,
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| famous at the time ofregistration of the
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| | the most cost-effectiveoption of all may
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| domain name, is identical or confusingly
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| | be to pay what is demanded. That at least
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| similarto or dilutive of that mark; or
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| | getsthe domain name back under YOUR
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| (III) is a [registered] trademark ..."
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| | control where it belongs.
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| In terms of what constitutes "bad faith",
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| | And there's nothing to stop you turning
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| the Act provides that thecourt may
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| | around and reporting theindividual in
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| consider factors (among others) such as:
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| | question to the DA, police, FTC etc.. In
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| "The person's [i.e., the alleged
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| | fact, payingover the money may be your
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| cybersquatter's] intent to
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| | best chance of identifying theperpetrator
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| divertcustomers from the mark owner's
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| | so you can initiate a criminal
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| online location to a siteaccessible under
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| | prosecution.
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| the domain name that could harm the
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| | Of course, all of this is damage control
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| goodwillrepresented by the mark, either
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| | which is a VERY poorsubstitute for
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| for commercial gain or with theintent to
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| | prevention. So go back to Item 1. and
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| disparage the mark, by creating a
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| | calendaryour domain name due dates to
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| likelihood of confusionas to the source,
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| | avoid getting into this messin the first
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| sponsorship, affiliation, or endorsement
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| | place.
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| of thesite; and
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|
