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Tracey S. Roth

Dot Com Commerce

Managing Editor, [email protected] CENTER CRM Solutions

[August 10, 2000]

Excuse Me, You're Squatting On My Domain Name

I went to see Jethro Tull in concert two weekends ago. I'm a big fan. I won't bore you with the details, but I will point out that the band has been in the news recently, in case you weren't one of the five other people who noticed. Jethro Tull's official Web site is jtull.com, not the more logical jethrotull.com. Why? Because they, like many other groups, individuals and organizations, have been the victim of a cybersquatter for the last few years. International arbitrators ruled in the band's favor last month, transferring the domain name from an "enterprising" American individual to the band. The entrepreneur in question has sadly been cheated out of the $13,000 which he had been hoping to receive.

Is there anything in the world worse than a personal injury lawyer who advertises on billboards and television? Maybe. Cybersquatting, or cyberpiracy, seems to have become this decade's pyramid scheme moneymaking scam. Find a company, group or individual that has yet to register all forms of its name, get there first, and of course that organization will be grateful to you down the road when you obligingly sell its name back to it. Personally, I find it about as appetizing a practice as gang members demanding "protection" money from restaurants and nightclubs. The good news is that most people seem to share my views.

Unfortunately, it's not as cut-and-dried as it may seem. In a case with a different outcome, musician Sting recently lost his bid to retrieve Sting.com for his personal use. The group that has owned the domain name for the last eight years, an online gaming company, was successful in its fight to retain the name. Why? For a few reasons. One, the word "sting" is a common English word. Claiming it is proprietary is like trying to copyright a sneeze and forcing everyone who sneezes to pay you royalties. Secondly, it seems that Sting the individual never legally changed his name from his birth name of Gordon Sumner. Finally, the arbitrator ruled that unlike the Jethro Tull case, the owner of Sting.com had a legitimate business use for the domain name -- the company was launched originally as "Stingray" and later became "Sting."

The issue is likely to become more prevalent as the already small pool of desirable, easy-to-remember domain names available shrinks even further. A report issued by Wired News last year found that of the 25,500 words in the average English dictionary, the number of words available for incorporation into a domain name was less than 2,000. Then, there are the embarrassing and high-profile stories. A few months ago, it apparently came to the attention of Irish Prime Minister Bertie Ahern that his name, followed by a dot com, was being used by a pornography site (which obligingly offered to sell it to him).

As with most Internet-based controversies, attempts have been made to draft legislation to prevent the practice. Though I always admire the nobility of these crusades, I liken it to raking leaves out of your own yard, only to have those of your lazy neighbors on both sides blow right back onto your lawn overnight. A U.S.-based law is enforceable only in the U.S., and the Internet does not respect national borders. The current process of assigning international arbiters to making the domain name dispute decisions seems to be working best thus far.

I'm cynical about legislation on the subject for one basic reason. The term almost always applied to a domain name dispute is "bad faith." S.1225, a Senate-sponsored bill that was proposed last year, intends to prohibit "the registration, trafficking in or use of a domain name that is identical to, confusingly similar to, or dilutive of a trademark or service mark of another that is distinctive at the time of registration of the domain name, without regard to the goods or services of the parties, with the bad-faith intent to profit from the goodwill of another's mark." It's a noble attempt, but who determines what "bad faith" is or is not? To me, that's like trying to write a law regarding what the proper length of a string should be.

President Clinton was initially not in favor of the bill, citing that the issue was better left to both Federal courts to develop a body of law regarding the subject, and the World Intellectual Property Organization, which, unlike any one country's government, can cross international law lines. In the end he relented to some extent, signing into law the Anticybersquatting Consumer Protection Act (ACPA) in November of last year. The ACPA includes the dreaded and nebulous term "bad faith" and should prove to be fun to enforce.

Though nowadays, any company or organization worth its salt already owns its own domain name, the next wave of cybersquatting will probably come in the form of names swiped from potential mergers. Heard a rumor that the ABC Cheesemaking Company is about to merge with Salty Cracker Enterprises? Hurry up and register ABCSalty.com, SaltyCheeseSnacks.com and www.EatMoreCheeseAndCrackers.com someone will want them, eventually.

And it's so much easier than getting a real life.

The author hopes to hear from Jethro Tull, the Prime Minister of Ireland and anyone else who has an opinion at troth@tmcnet.com.

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