| Domain Name Registrations Generally
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| | "the person's offer to transfer, sell, or
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| As a general rule, you can register any
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| | otherwise assign thedomain name to the
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| domain name that is notalready registered
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| | mark owner or any third party for
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| (subject to trademark
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| | financialgain without having used, or
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| considerationsdiscussed below). If your
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| | having an intent to use, the domainname
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| domain name is sufficientlydistinctive,
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| | in the bona fide offering of any goods or
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| for example, jtdbizopps.com, the bit
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| | services, or theperson's prior conduct
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| before the
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| | indicating a pattern of such conduct."
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| .com may also be a common law trademark
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| | A common problem is identifying the
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| (unless, of course, it'sregistered and
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| | culprit. In Jan Tallent-
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| then it's a registered trademark). If you
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| | Dandridge's case, for example, the only
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| DO havea distinctive domain name, then
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| | information about theperpetrator
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| the discussion in the nextsection applies
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| | Registrant: Dave Web
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| to you.
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| | (JTDBIZOPPS-COM-DOM) Buy This Domain 5
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| If you don't have a distinctive domain
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| | Tpagrichnery St ., # 33
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| name, however, and bythis I mean a name
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| | Yerevan, Armenia 375010 AM 208.978.3555
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| that is "descriptive" or in general
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| | Call me skeptical, but somehow I doubt
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| usage,for example, "home-business.com",
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| | that's a real name andaddress.
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| then this name will be neithera common
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| | Fortunately, the Act has anticipated this
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| law trademark nor a registrable
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| | problem:
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| trademark.
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| | "The owner of a mark may file an in rem
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| In this case, once you've lost your
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| | civil action against adomain name [an "in
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| domain name registration,you are, not to
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| | rem" proceeding is an action against
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| put too fine a point on it, screwed. You
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| | thething rather than against a defendant
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| don'thave much in the way of recourse
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| | - in this context, itmeans that the court
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| other than for the "generic"legal avenues
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| | can make an order in relation to the
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| which may well be too expensive for you
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| | domainname itself rather than against
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| to pursue.
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| | Dave Web personally such asordering him
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| These avenues are discussed below.
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| | to surrender the domain name] ... ".
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| => Domain Names and Trademarks
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| | And as for remedies, assuming you are
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| On the other hand, if you have a
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| | able to identify yourparticular scumbag,
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| distinctive domain name (i.e.,one that is
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| | these include injunctions and damages
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| not in common usage), then that name is
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| | (either actual or, in a case where your
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| also likelyto be a common law trademark
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| | individual name is atissue, statutory
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| (unless, as stated above,
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| | damages of between $1,000 and $100,000
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| you'veregistered it, in which case it's a
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| | perdomain name).
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| registered trademark. And,if you do have
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| | => Generic Legal Avenues
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| a common law trademark, I would recommend
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| | Whether or not you can pursue an action
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| thatyou register it. Registration can
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| | under the Act, there area number of legal
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| only strengthen your position.)
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| | avenues open to anyone in Jan's situation
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| The law generally sides with the
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| | (andby that, I mean, someone who is using
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| pre-existing trademark ownerover the
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| | the domain name to pointto a site that
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| domain name holder. In addition, the U.S.
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| | damages your reputation).
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| has enactedthe federal
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| | First off, let's recognize this practice
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| Anti-Cybersquatting Consumer Protection
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| | for what it is.
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| Act (the
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| | Extortion. Pure and simple. It's a crime.
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| "Act"). Under the Act, you can sue a
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| | So is criminaldefamation. Write a
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| cybersquatter to get backyour domain name
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| | strongly worded cease and desist letter
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| and sometimes damages to boot. So,
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| | tothe offender, threatening to report
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| what'sactionable under the Act? Here's an
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| | them to the District
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| extract from the Act itself:
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| | Attorney and/or the police and the
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| "A person shall be liable in a civil
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| | Federal Trade Commission aswell as
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| action by the owner of amark, including a
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| | instituting a civil suit. You are more
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| personal name which is protected as a
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| | likely to get aresult if the letter comes
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| mark ...if, without regard to the goods
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| | from your attorney.
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| or services of the parties, thatperson Â
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| | If the offender doesn't comply, report
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| (i) has a bad faith intent to profit from
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| | them. As for what actionwill be taken,
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| that mark ...; and
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| | your guess is as good as mine but at
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| (ii) registers, traffics in, or uses a
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| | least you'vedone what you can.
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| domain name that Â
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| | If you have the resources to do so, you
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| (I) in the case of a mark that is
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| | can also bring civilproceedings against
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| distinctive at the time ofregistration of
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| | the offender on the same grounds.
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| the domain name, is identical or
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| | Theconduct in question is egregious
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| confusinglysimilar to that mark; (II) in
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| | enough that you may well getpunitive
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| the case of a famous mark that isfamous
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| | damages awarded in your favor.
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| at the time of registration of the domain
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| | Finally, and I HATE to even suggest this,
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| name, isidentical or confusingly similar
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| | the mostcost-effective option of all may
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| to or dilutive of that mark; or
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| | be to pay what is demanded.
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| (III) is a [registered] trademark ..."
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| | That at least gets the domain name back
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| In terms of what constitutes "bad faith",
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| | under YOUR control whereit belongs. And
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| the Act provides thatthe court may
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| | there's nothing to stop you turning
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| consider factors (among others) such as:
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| | around andreporting the individual in
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| "The person's [i.e., the alleged
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| | question to the DA, police, FTCetc.. In
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| cybersquatter's] intent todivert
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| | fact, paying over the money may be your
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| customers from the mark owner's online
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| | best chance ofidentifying the perpetrator
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| location to a siteaccessible under the
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| | so you can initiate a
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| domain name that could harm the
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| | criminalprosecution.
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| goodwillrepresented by the mark, either
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| | Of course, all of this is damage control
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| for commercial gain or with theintent to
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| | which is a VERY poorsubstitute for
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| disparage the mark, by creating a
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| | prevention. So go back to Item 1. and
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| likelihood ofconfusion as to the source,
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| | calendaryour domain name due dates to
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| sponsorship, affiliation, orendorsement
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| | avoid getting into this mess inthe first
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| of the site; and
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| | place.
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