It Could Happen To You - Part 2

Written by Elena Fawkner


=> Domain Name Registrations Generally

As a general rule, you can register any domain name that is not already registered (subject to trademark considerations discussed below). If your domain name is sufficiently distinctive, for example,,repparttar bit beforerepparttar 108328 .com may also be a common law trademark (unless, of course, it’s registered and then it’s a registered trademark). If you DO have a distinctive domain name, thenrepparttar 108329 discussion inrepparttar 108330 next section applies to you.

If you don’t have a distinctive domain name, however, and by this I mean a name that is “descriptive” or in general usage, for example, “”, then this name will be neither a common law trademark nor a registrable trademark.

In this case, once you’ve lost your domain name registration, you are, not to put too fine a point on it, screwed. You don’t have much inrepparttar 108331 way of recourse other than forrepparttar 108332 “generic” legal avenues which may well be too expensive for you to pursue. These avenues are discussed below.

=> Domain Names and Trademarks

Onrepparttar 108333 other hand, if you have a distinctive domain name (i.e., one that is not in common usage), then that name is also likely to be a common law trademark (unless, as stated above, you’ve registered it, in which case it’s a registered trademark. And, if you do have a common law trademark, I would recommend that you register it. Registration can only strengthen your position.)

The law generally sides withrepparttar 108334 pre-existing trademark owner overrepparttar 108335 domain name holder. In addition,repparttar 108336 U.S. has enactedrepparttar 108337 federal Anti-Cybersquatting Consumer Protection Act (the “Act”). Underrepparttar 108338 Act, you can sue a cybersquatter to get back your domain name and sometimes damages to boot. So, what’s actionable underrepparttar 108339 Act? Here’s an extract from repparttar 108340 Act itself:

“A person shall be liable in a civil action byrepparttar 108341 owner of a mark, including a personal name which is protected as a mark ... if, without regard torepparttar 108342 goods or services ofrepparttar 108343 parties, that person ­

(i) has a bad faith intent to profit from that mark ...; and (ii) registers, traffics in, or uses a domain name that ­

(I) inrepparttar 108344 case of a mark that is distinctive atrepparttar 108345 time of registration ofrepparttar 108346 domain name, is identical or confusingly similar to that mark; (II) inrepparttar 108347 case of a famous mark that is famous atrepparttar 108348 time of registration ofrepparttar 108349 domain name, is identical or confusingly similar to or dilutive of that mark; or (III) is a [registered] trademark ...”

In terms of what constitutes “bad faith”,repparttar 108350 Act provides thatrepparttar 108351 court may consider factors (among others) such as:

“The person’s [i.e.,repparttar 108352 alleged cybersquatter’s] intent to divert customers fromrepparttar 108353 mark owner’s online location to a site accessible underrepparttar 108354 domain name that could harmrepparttar 108355 goodwill represented byrepparttar 108356 mark, either for commercial gain or withrepparttar 108357 intent to disparagerepparttar 108358 mark, by creating a likelihood of confusion as torepparttar 108359 source, sponsorship, affiliation, or endorsement ofrepparttar 108360 site; and

“the person’s offer to transfer, sell, or otherwise assignrepparttar 108361 domain name torepparttar 108362 mark owner or any third party for financial gain without having used, or having an intent to use,repparttar 108363 domain name inrepparttar 108364 bona fide offering of any goods or services, orrepparttar 108365 person’s prior conduct indicating a pattern of such conduct.”

It Could Happen To You - Part 1

Written by Elena Fawkner

No, I'm not talking aboutrepparttar warm and fuzzy movie that was on cablerepparttar 108327 other night with Nicholas Cage and Brigitte Fonda. I'm talking about another type of experience altogether - one of repparttar 108328 decidedly cold and nasty variety.

You know what cybersquatting is, right? It's when someone registers a domain name that heretofore has been someone else's trademark, withrepparttar 108329 intent to holdrepparttar 108330 name for ransom. Sometimes these people identify trademarks inrepparttar 108331 market place and snap uprepparttar 108332 domain name figuring that, sooner or later,repparttar 108333 owner ofrepparttar 108334 trademark is going to want to registerrepparttar 108335 domain name and may even be prepared to pay handsomely forrepparttar 108336 privilege.

Other times, and this may even be worse, these trolls seize domain names that have lapsed due to their owners failing to renew them in time. Whenrepparttar 108337 former owner tries to renew they soon learn to their horror that someone else has gazzumped them and are demanding several hundreds or thousands of dollars to return their property to them. As reprehensible as this practice is, there's nothing new about it andrepparttar 108338 courts are chock-full of cases brought byrepparttar 108339 outraged victims. ] But put *yourself* inrepparttar 108340 shoes ofrepparttar 108341 poor person who has unwittingly allowed her domain name registration to lapse only to find that "Dave Web" is nowrepparttar 108342 rightful owner and wants $550 from you to give it back.

Now put yourself into these size elevens ... not only has Dave Web kidnapped your domain name,repparttar 108343 very one that used to point torepparttar 108344 site containing all of your hard work forrepparttar 108345 past three years,repparttar 108346 domain name that is synonymous with your hard-earned reputation, not only that ... it now points somewhere else.

To a porn site.

We have now graduated from "mere" cybersquatting to criminal extortion. Not to mention criminal defamation.

This, believe it or not, is what happened to Jan Tallent-Dandridge just this week. Many of you will know Jan asrepparttar 108347 publisher of Rim Digest ( You may also be familiar with her other websites, and, although if you tried to visitrepparttar 108348 latter site today, you'd get a rather unpleasant surprise. This isrepparttar 108349 domain name hijacked by Dave Web.

To give yourepparttar 108350 background to this sorry tale, I asked Jan's permission to reprint her email to me

"... I had a domain name,, for over two years but did not renew it. Instead I set up as a mirror and quit running ads, swaps, etc. forrepparttar 108351 old name.

"When it came up for renewal, I was going to renew it just to keep it from being used for a year or so as I still had ads and link swaps out there I could not track down.

"Network solutions would not releaserepparttar 108352 name to me without my paying them $70 for 2 years and THEN transferring it somewhere else. I felt this was ridiculous since, etc. are only $10 or so a year.

"I did not renew in time and when I did try, about a week afterrepparttar 108353 cancellation date, it was "in purge", to quote NS, and I would have to wait 30 days or so for it to become available again.

"During this time an individual bought it somehow and offered it back to me for $550.00.

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