domain name squatting

This page looks at cybersquatting and typosquatting.

It covers -

• introduction
• cybersquatting - concepts and issues
• typosquatting - 'stealth' squatting
• protest domains - the sucks phenomenon
• statistics - the extent and value of disputes

A later page looks at mechanisms for resolving disputes about cybersquatting, in particular the UDRP, ACPA, CDRP and auDRP.

     introduction

A domain name is a mnemonic for a string of digits that identifies an address in cyberspace. Disputes about domain naming have come to embrace a range of disputes about use/misuse of those addresses, with questions that include -

• who has the right to use a particular name
• are there limits on free speech
• what are appropriate restrictions on names that are similar to that of a particular address.

Responses to those questions reflect personal values and commercial interests.

They also reflect different registration and intellectual property regimes.

     cybersquatting

Cybersquatting involves registering a domain name in 'bad faith', in particular -

• to profit by selling that address to a business or individual (eg Nike, British Telecom, Madonna) with the same corporate name, product name or trademark
• to deny those entities the use of the domain name
• or to gain a benefit by confusing surfers, who may believe that the address is operated by a particular brand or corporate name owner.

A domain name is important because it can embody an offline corporate identity, a trademark, a geographical appellation or a personal name. That embodiment has economic and cultural value, for example reflecting the billions of dollars spent on marketing Pepsi or the years of goodwill accrued by philanthropic organisations.

A name is also important because, as discussed in considering commercial valuation, it is an address in cyberspace: some addresses are easier to find than others, some names are online destinations (and thus generate traffic statistics that can be commodified) because they share the same words as online entities.

Disputes about 'ownership' of domain names reflect different perceptions of the DNS.

Culture Wars on the Net: Trademarks, Consumer Politics & Corporate Accountability on the World Wide Web (PDF) by Rosemary Coombe & Andrew Herman for example comments

If you think the Web is simply a marketplace, a big mall where companies compete for brand identity and mindshare then Playboy's trademark protection makes sense. While many large corporations have sunk piles of money into making this vision of the Web a reality, vast numbers of individual people are busy pursuing a different vision one in which the Web is a giant communications network in which we find one another based on a shared interest, be it bottle-top collecting, Proust, or Playboy bunnies. In the latter vision, any company that tries to clamp down on use of its name is also going to stifle any chance of building an enthusiastic following across the Web. Playboy, with its history as the grand-daddy of pinup magazines, is obviously less interested in exploiting the Web's potential for building new kinds of relationships than in simply protecting the gold mine of its existing brand. Playboy can afford lots of lawyers and appeals, and there is no guarantee that its proprietary approach to words won't prevail. And if the law ends up treating the Web as one big business directory, then we shouldn't be surprised if the medium ends up becoming as scintillating as a volume of the Yellow Pages.

It reflects different registration rules.

Domain registration in several of the gTLDs - notably dot-com - and some ccTLDs has a 'first come, first served' basis. That means individuals and organisations have been able to register names - often several thousand names - that feature words used in trademarks, corporate names, the names of prominent people, country names or other geographical names.

In dot-au and some other ccTLDs there are 'close association' requirements that impede registration of names by unrelated entities and limit development of a secondary market (ie restrictions on transfer inhibit speculative registration).

Disputes also reflect the shape of naming offline.

Some terms may be protected under trademark or other legislation, which varies in detail from country to country and which often protects different uses of a term by different entities. Ford Model Agency, Ford Motors, Ford Real Estate and Ford Plumbing are distinct trademarks and registered business names owned by different entities.

Many individuals have a surname that is the same as a words in a business name or trademark. That has led to conflict where a trademark owner has sought to take a registration held by an individual whose surname is the same as the mark or that relates to a business name rather than a mark (eg the Nissan dispute in the US). All names are equal; some are more equal than others.

In some disputes there is no attempt to hold a trademark owner hostage. Instead the disagreement involves conflict between two entities with legitimate interests in using a domain name. Under trademark law Ford Motors and Ford Plumbing can each have a 'ford' mark but there is only one ford.com domain, so that one entity is going to have to use a different address. There have thus been cases where a trademark owner has taken action against holders of a domain name that contains that trademark, even where there is little chance of confusion, to obtain the desirable dot-com domain name.

     typosquatting

Typosquatting involves registering names that are minor typographical variations on brand names or other desirable addresses on the web. The expectation is that surfers will encounter the 'typo' site when they mis-key the desired domain name (eg www.netcsape.com, telsra.com, microsotf.com, altavsita.com, altavisto.com or amazom.com).

Typosquatting has generally been regarded as a sign of bad faith and has taken two forms.

Some typosquatters, particularly in the adult content industry where the revenue of many site operators is primarily dependent on the number of visitors to a page or set of pages, have simply sought to free-ride on traffic.

Ben Edelman's 2003 report offers an elegant analysis of bad practice by a US typosquatter whose 5,000 sites mousetrapped inadvertant visitors (eg disabled the 'back' command on browsers) into viewing erotica.

Other typosquatters - like those making what many rights owners consider to be improper use of metatags - have sought to cream off customers of commercial sites. Mis-type the address and you arrive at a site that offers products/services from a competitor or that advocates a political message quite different to what you were expecting.

One example is the 1998 Jews for Jesus case (PDF), a dispute between the registrant of jews-for-jesus.org and a critic who registered jewsforjesus.org and jews-for-jesus.com for sites that ridiculed the registrant's beliefs. The US court considered that the two registrations had been made in bad faith and referred to the 1994 dispute between Princeton Review and its competitor Kaplan Educational Center. Princeton registered kaplan.com for a site disparaging Kaplan and praising the Princeton Review.

     protest domains

Most disputes have a commercial basis and are amenable to notions of 'bad faith' registration. Domain names used in some 'sux' sites pose more difficult problems, notably in the US regarding free speech.

As the term suggests, sux sites are established by individuals or advocacy groups to criticise a business, a government agency, another organization or even a prominent individual. The domain names for such sites often incorporate a sux or sucks suffix (eg exxonsux.com, aolsucks, microsoftsucks, asdasucks.co.uk or telstrasux.com).

Some, such as starbucked and noamazon.com or tellthetruthtelstra.com.au, are terse and even witty. Others are less succinct (eg guinness-really-really-sucks, guinnessbeerreallyreallysucks and verizonshouldspendmoretimefixingitsnetworkandlessmoneyonlawyers) or so hermetic as to have little meaning to anyone other than the registrant, eg pepsibloodbath, satanlovesthewashingtonpost or washingtonpost-iammadashellandnotgoingtotakeitanymore (the latter names from an enthusiast who has registered over 50 anti-WP names).

Some sites are staid venues for cogent criticism. Others contain what one WIPO panel described as "scandously and disgustingly abusive" content.

Those attacked have accordingly exhibited a range of responses, including claims of defamation, breaches of copyright and trademark infringements - whether direct or through dilution of the mark on the basis that it is tarnished through association with illicit activity. Some have successfully claimed that registration was in bad faith.

One Asda critic for example lost his domain on the basis that he had offered to sell it to the UK retailer. Entrepreneur Dan Parisi, operator of the Whitehouse.com adult content site, gained attention for registration of 700 domain names containing 'sucks' and a major brand or corporate name.

Registrants, particularly in the US, have responded that the names and site content are protected as free speech and that visitors can readily differentiate between a target site and its sucks counterpart, meaning that there is no infringement. Critics such as the US Chilling Effects Project have argued that courts and arbitration panels tend to favour corporate interests in domain name disputes, thereby chilling public discourse.

In 2000 the US Consumer Project on Technology accordingly proposed a new dot-sux gTLD, to be administered by a Dot Sucks Foundation, as a special zone outside trademark constraints "to enable citizens to improve civil society".

     statistics

Figures on the prevalence of squatting, on its economic significance and on the dimensions of litigation are contentious.

As of October 2002 around 11,000 actions had been initiated under the UDRP. In 2007 WIPO reported that some 1,823 cybersquatting complaints were filed in 2006, the highest number since 2000.

Particular entrepreneurs have attracted attention: Dennis Toeppen for example used the trademarks of over 100 major corporations in registering several hundred domain names. He successfully sold some names for up to US$15,000 per domain before facing litigation over trademark dilution and other offences.

There are no authoritative global figures on the number of companies that have simply bought out speculators or blatant squatters. Figures for the global value of such transactions similarly are not available.

A range of academic, industry and enthusiast sites track individual domain disputes and the evolution of dispute policy. UDRP sites and databases of particular importance are noted on the UDRP page. Other sites specialising in DNS disputes include DomainBattles and DomainState (formerly Domainshame).







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