Today we have a guest post by Mr. Vijit Mishra, who is a "Patent Specialist" from Gurgaon, India. Vijit holds a Masters Degree in Biomedical Engineering and has been involved in the field of patent analytic for more than 4 years now.
I have been wanting to have my own website where I intended to write about Football and other sporting activities. I had a few names for the website in my mind and cross-checked those names on various domain registration websites. I was surprised to see that most of the names for my website were already taken or registered. In order to satisfy my curiosity, I visited the already registered websites so that I could see what kind of content was uploaded on these websites by, what I assumed to be, people who shared similar interests. To my dismay, a majority of those sites had the following message:
“The domain name is for sale” or “The domain is under construction”. To make matters, worse, many websites were hosting several advertisements on their home page. I did some basic research to determine the rationale of having a website registered and not uploading any content on such websites. I realized that occupying or “sitting” on popular website/domain names is pretty common and is commonly known as “CYBERSQUATTING”. Some more “Googling” and I figured that Cybersquatting is a very serious concern in today’s digital age.
So what exactly is Cybersquatting? Cybersquatting is the act of registering a popular internet address - usually a company name or a person name - with the intent of selling it to its rightful owner. According to the Anticybersquatting Consumer Protection Act in US, Cybersquatting is defined as registering, trafficking in, or using a domain name with bad-faith intent to profit from the goodwill of a trademark belonging to someone else. The term derives from squatting, the practice of inhabiting someone else's property without their permission.
Cybersquatting was made illegal by the passage of the federal law in 1999. The law became necessary because numerous large companies were forced to pay large sums to buy their domain names from third parties.
How to check
As a general rule, first check to see if the domain name takes you to a website. If it does not take you to a functioning website, but instead takes you to a site stating "this domain name is for sale," or "under construction," or "can't find server," the likelihood increases that you are dealing with a cybersquatter, a person who creates such sites. The absence of a real site may indicate that the purpose of the owner of the domain name is to simply buy and sell the domain names to other users at a higher price than usual.
Of course, absence of a website does not always mean the presence of a cybersquatter. There may also be an innocent explanation and the domain name owner may have perfectly legitimate plans to have a website in the future.
If the domain takes you to a functioning website that is comprised primarily of advertisements for products or services related to your trademark, you may also have a case of cybersquatting. For example, if your company is well-known for providing audio-visual services and the website you encounter is packed with ads for other company's audio-visual services, the likelihood is very strong that the site is operated by a cybersquatter who is trading off your company's popularity to sell advertisements to your competitors.
If the domain name takes you to a website that appears to be functional, has a reasonable relation to the domain name, but does not compete with your products or services, you probably aren't looking at a case of cybersquatting.
Forms of cybersquatting
There could be various forms of cybersquatting mainly based on the intent of the cybersquatter
· Typosquatting: Many Cybersquatters reserve common English words, reasoning that sooner or later someone will want to use one for their websites. Another target is mis-typed spellings of popular web sites. Cybersquatters will also regularly comb lists of recently expired domain names, hoping to sell back the domain name to a registrant who inadvertently let his domain name expire.
· Identity theft: Internet domain name registrations are for a fixed period of time. If the owner of a domain name doesn't re-register the name with an internet registrar prior to the domain's expiration date, then the domain name can be purchased by anybody else after it expires. At this point the registration is considered lapsed. A cybersquatter may use automated software tools to register the lapsed name the instant it is lapsed.
· Namejacking: It includes the purchase of a famous individual's name as a top-level domain name. A recent example is when Arun Jaitly tried to get his website from the name of arunjaitly.com; he found out that the site is already registered. The whole story can be read here. Setting up a website allows the purchaser to capitalize on any searches done for that name. As the name-jacked domains are set up using non-trademarked names and they have a purpose other than selling the domain name back to an individual, they circumvent the "Anti-cybersquatting Consumer Protection Act" (ACPA) laws U.S.C. § 1125 and U.S.C. § 1129. Since people frequently search the web to find out information, name jacking provides low-cost web traffic to the name-jacked website. As there is an initial and yearly fee for owning a domain name, some Cybersquatters reserve a long list of names and defer paying for them until forced to - preempting their use by others at no cost to themselves.
· Brand abuse online: Cybersquatters use variations on trademarked names to draw visitors to their sites. Those sites may contain offensive content or pay-per-click ads, or they may create a false association with the trademark owner or sell competing products. Some may combine offensive content and e-commerce featuring pornographic images or other products.
Other then moving to the court there are few more policies and law have been established to get protection from the Cybersquatters:
· Comparing cybersquatting to online extortion, Senator Spencer Abraham, a Michigan Republican, has introduced to Congress the Anti-Cybersquatting Consumer Protection Act (ACPA). This bill, if enacted, would make cybersquatting illegal. Violators would be charged a fine of up to $300,000.
· The World Intellectual Property Organization (WIPO) has also outlined anti-cybersquatting tactics, which have been endorsed by ICANN (Internet Corporation for Assigned Names and Numbers, which licenses the domain name registrars, is working on a process for resolving domain name disagreements outside of the regular court system. Information about initiating a complaint is provided at the ICANN website.
· The Uniform Domain Name Dispute Resolution Policy (UDRP) is a policy adopted by ICANN that provides a mechanism for trademark owners to obtain domain names from cyber squatters. All domain name registrars that have the power to grant “.com”, “.net”, and “.org” generic top-level domains must follow the UDRP. The UDRP provides that before a domain name registrar will cancel, suspend, or transfer a domain name that is the subject of a trademark-based dispute, it must have an agreement signed by the parties, a court order, or an arbitration award. The UDRP created a streamlined "cyber arbitration" procedure to quickly resolve domain name ownership disputes that involve trademarks. All owners/registrants of “.com”, “.net”, and “.org” domain names are subject to the UDRP by virtue of the registration agreements agreed to with their registrars at the time of acquiring their domain names
Both of these systems have their advantages, but they must be used properly in order to achieve the desired result. The UDRP provides a method for quick resolution of a dispute whereas the ACPA allows for an extended legal battle with the potential of large monetary settlements being awarded. However, both systems help to provide security and structure to the complicated and widespread problem of cyber squatting. These acts, along with the legal system, are the only protection available to those who wish to defend themselves from cyber squatters.
Cyber squatting has been an active threat since the early 1990’s and has increased in severity ever since. The prevention of cyber squatting revolves mainly around two acts, the UDRP and the ACPA. Since cyber squatting is going to shift from larger businesses to small businesses in the future, modifications to the cyber squatting acts will need to be made in order to increase protection. The ACPA will need to be modified to protect individuals who own a site similar to a corporation's trademark because currently the act favors big businesses. Cyber squatting problems are going to continue to develop because of the rapid growth and expansion of the Internet. The issue cannot simply be ignored or else it may hurt the economy. It’s important to learn from the victims of cyber squatting so we can prepare ahead of time for the issues to come.
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