RSS
affiliate_link

RSSAll Entries in the "Domain Names" Category

Trademark Owners and Domain Acquisition through Intimidation

I am 100% supportive of the right to file a trademark, patent, or service mark. I want to get that out of the way first. America was built on the greatness of it’s inventors and innovators and they have a right to be protected.

That being said, the US Patent and Trademark Office have gone completely off their rocker. Corporations have muscled their way in and began to make trademarks and patent a total joke. The USPTO has led trademark owners to believe they actually OWN the string of letters that make up their trademark.

First of all what is a trademark? According to USPTO.gov; (Don’t type it into the browser without the www because our government isn’t smart enough to hire webmasters who know how to make the domain name work without the www)

“A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.”

Note: It says; “to be used and not owned”. Some may think there is no difference there. Ah, but let’s take a closer look.

Trademark Classes

When filing a Trademark, you must choose a “CLASS”, like Medical Apparatus, Firearms, Jewelry, etc. Therefore, you DO NOT OWN the string of letters or words; you have the right to USE them when doing business in your particular category, while someone else can use the same string of letters to file a trademark in another CLASS.

Why File a Federal Trademark vs a State Trademark?

Federal registration is not required to establish rights in a trademark. Common law rights arise from actual use of a mark. Generally, the first to either use a mark in commerce or file an intent to use application with the Patent and Trademark Office has the ultimate right to use and registration. However, there are many benefits of federal trademark registration.

How is that relative to domain name registrations?

This is directly relative to registering domain names. ICANN (Internet Corporation for Assigned Name and Numbers) turned over domain name disputes to WIPO (World Intellectual Property Organization, with a very loose definition of the word Intellectual).

In many cases, a person has filed a domain name, then long after the filing of the domain name, someone else registered a trademark for the same string of letters. But remember the trademark registrant had to choose a specific class for their mark. They did not register OWNERSHIP of a string of letters.

However, in 80% of these cases, WIPO has found that the trademark registrant had the right to take the domain name away from the person who registered the domain name long before the trademark was filed.

In addition to that, nowhere in your trademark application are you guaranteed a domain name that matches your trademark.

The domain name is NOT in a particular class, therefore it does not match your trademark, even if it is the exact same string of letters. The exception to that is when you register a domain name that is an exact match to a creative and original word or a word that is a famous trademark and that is not a generic word or phrase.

Example: If you register any domain name that contains Microsoft or Xerox in it, you are infringing on those trademarks. The only exception is if you register XeroxSucks.com to complain about them or something that is clearly a parody making fun of that company.

Fan sites are at risk of being found as trademark infringement. If you register DodgeChargerFan.com and write all about how you love Dodge Chargers, Chrysler can take your domain name away from you. They’ve done it under similar circumstances before, even after they wrote a positive article about the site in their own newsletter.

About First Use and Domain Names

Registering a domain name is EXACTLY like first use or intent to use. The domain name registrant, if it was registered before the mark, should have MORE rights than the trademark holder, not less.

ICANN and WIPO have consistently misapplied trademark law to suit big corporations.

Corporations missed the boat on domain names

Many large corporations missed the boat in the first rounds of domain name registration when many of the good names were registered.

They didn’t bother with filing good generic domain names nor even their own company names because they thought the Internet was a passing fad. Honestly, you would think that corporations hire the best and the brightest people, but that isn’t necessarily so.

Examples: None of the big three automakers registered cars.com, autos.com, trucks.com, etc. None of the large jewelry chains registered jewelry.com. There are hundreds of examples where corporations missed the boat.

As soon as they became aware of the enormous potential of the Internet and found that many of the good domain names were taken, they put their lawyers to work to try to steal good domain names from others who had previous rights to the domain names due to the first come first serve policy of domain name registration.

Reverse Domain Name Hijacking

This been occurring for a long time now. The big corporations get all the publicity when a Cybersquatter registers a domain name that matches their trademark. And the publication of those stories makes them sound like poor helpless victims.

What does not get reported is the fact they have teams of lawyers searching for domain names that are owned by individuals that they want for their own. When they find one they want, they send threatening letters to the individual, threatening expensive lawsuits, etc. etc.

In many cases the individual is scared, does not understand, and simply turns over their domain name to the big bad corporation. That is their game; Domain name acquisition through intimidation.

Why doesn’t this get published to the public more? Because individuals don’t buy advertising, corporations do. The media slants these stories in favor of those who pay for their ads and those that might publish it don’t understand the issue in the first place.

People need to understand trademark law and it’s relationship to domain names so they can protect themselves. Do not just turn your domain name over to someone who threatens you.  Just say no! Threaten to defend your domain name all the way. Tell them you will take it to regular court and not the kangaroo court of WIPO arbitration (the UDRP). Likely they will simply move on to an easier target.

Chris McElroy has bought and sold more than 1500 domain names, has been a member of the DNSO (Domain Name Supporting Organization) working groups, a member the General Assembly of individual users under ICANN, and is currently on mailing lists to advise and monitor the actions of the GNSO (Generic Names Supporting Organization). He continues to fight for the rights of individual users of the Internet and domain name holders. His website, http://www.seoserviceprovider.com offers free domain name consultation and free SEO consultation as well.

Related articles by Zemanta
Reblog this post [with Zemanta]
March 27, 2010 | Chris McElroy | Comments 0
Read More

Domain, TLD, and Trademark Myths and Facts

I started buying and selling domain names in 1995. Domain speculation began sometime in 1994. I did appraisals and was one of the biggest advocates for registering generic domain names rather than made-up names or those that violated trademarks.

I made a good income from my domains because I did not just sell domain names, I sold domain names that had a business plan and a website while others were just trying to sell their domain names with no traffic, no business plan and no website.

Today many are still doing it that way. Although now they park them at SEDO or Go Daddy or somewhere to try to make adsense revenue while they list them for sale. So my background in domain names is good enough that I can dispel a few myths.

First TLD stands for Top Level Domain. .COM, .NET, .ORG are all examples of TLDs. The domain name most people refer to is what goes before the dot. The TLD is what comes after the dot.

These are some Common Myths about Domain Names;

.TV is for television or multimedia websites. Pure myth. Any domain name in any TLD can work for television, video, or multimedia. The TLD .TV does not give you any special tools for creating multimedia-rich content. .TV does not stand for television. It is the ccTLD or country-code TLD for Tuvalu Island. An island in the pacific that had no real use for owning a TLD so they sold the rights to sell domain names on their TLD to a company that leads people to believe it stands for television. It works. People buy them and use them and associate them with television and that is ok. It’s just a myth that .TV was created to mean television.

Another Domain Name Myth: If you want to build websites that people can access by their cell phone or PDA you need to get a .MOBI domain name. Just like dot tv does not give you any special capability for television or multimedia, dot mobi does not give you any special tools for mobile-capable websites. Any website on any TLD can provide content to cell phones and PDAs if it is made compatible for them. Many will lead you to believe that dot mobi somehow gives you the advantage when it comes to cell phones and PDAs. it doesn’t.

.ME Domain Names Myth: Coming soon to a domain registrar near you. Soon domain names will be marketing for the TLD dot ME. They will market them as great domain names for personal websites. They may be. But it was not created as such. It is the Country-code top-level domain designated for Montenegro.

.PN Domain Names: I own Blogs.pn. I would love to tell you it stands for Publisher network or something like that but it doesn’t. It is the Country-code top-level domain designated for Pitcairn Island. Another pacific island that did not have much use for a TLD so someone was authorized to sell dot pn domain names.

Soon ICANN will be allowing more TLDs to be created and domain names will be marketed in these new TLDs. More and more countries will also offer domain names for sale in their ccTLDs. So the market will be opening up and it may be confusing to some. The truth is what comes before the dot matters most. Getting a domain name in a TLD that makes sense to users can help you though.

Shorter Domain Names are better than Long Domain Names Myth: Only in certain circumstances is a shorter domain name better than a long domain name. Many domain gurus disagree. I don’t care. They talk about people being able to remember your domain name. Truthfully more traffic comes from people clicking links in search engines, on other websites, and on social bookmarking sites than comes from people who type in the domain name.

What is more important is that the domain name help you capture a phrase you want to target in the search engines. I can give you a ton of examples where having the exact phrase you want in the domain name has helped get a top position in Google and other search engines. So if the phrase is longer, do not abbreviate it just because you heard shorter domain names are better. Get the phrase you want to target.

If you are planning to advertise your domain name OFFLINE, in advertising on TV, radio, or even magazines and newspapers, shorter domain names ARE better. Offline, people have to be able to remember your domain name.

The best of both worlds: If most of your traffic comes from the web, shorter means very little. To cover both, get a domain name that matches your key phrase and put your website on that domain name. Then get a second domain name that is short and catchy and redirect or point it to the same website. Use the shorter-easy-to-remember domain name for your offline marketing and the domain that matches your key phrase for the search engines.

Anything other than a dot COM is worthless Myth: This is a favorite myth spread everywhere. It is based on the same myths about shorter domain names. If people have to remember it, then yes, they do remember dot com more often. If you are doing offline marketing, use a dot com.

Online your website can be on any TLD. People are clicking links. So again, get the domain name that matches your key phrase for your website whether it is on .com, net, org, tv, pn, cc, ws, or whatever. Start with dot com, try your phrase. If it is taken, move to the next TLD and try your phrase again. If it is taken, repeat your attempts to register until you find a TLD that your phrase IS available in and register it in that TLD.

These are some Myths about Trademarks and Domain Names;

Domain Name VS Trademark Myth #1: If I own a trademark I need to register my trademarked name in every TLD. Pure Myth and a worthless, time-consuming strategy promoted by Intellectual Property Lawyers who need to justify what you are paying them.

Domain Name VS Trademark Myth #2: When you register a trademark, you have to choose a classification for that trademark such as “entertainment television”, “clothing and apparel”, “beverages”, etc.

You do not own the phrase you trademark. You are being allowed to use that trademark in commerce within the classification you chose. Someone else can register the same exact trademark and choose a different classification.

In addition to that, the geographical area you registered your mark in only covers that area. Someone could have the same trademark in the same classification in a different geographical location.

So again, you do not own the phrase you trademarked, so no need to register every TLD in existence. It could even be construed as anti-competitive business practice to do so.

Domain Name VS Trademark Myth #3: If you chose the trademark, “goofball lawyer stuff” and chose the classification “clothing and apparel”, I could still register the domain name http://goofballlawyerstuff.com or net or org or whatever.

As long as I do not sell clothing or apparel, link to anyone who sells clothing and apparel, or try to confuse people into believing my website is owned by you, I have not violated your trademark rights. Get over it.

I hope this helps you dispel a few of the most common domain name and trademark myths you may have been reading about.

Related articles by Zemanta
Reblog this post [with Zemanta]
March 14, 2010 | Chris McElroy | Comments 4
Read More

Does ICANN’s TLD Policy Create Trademark Conflicts?

When the Internet was very young, all you had to do to get a domain name was call a man named Jon Postel, and ask for it. Things have changed greatly with the popularity of the Internet. Now the competition for a good, short, generic domain name is fierce. If you want a domain name in the popular .com namespace, you have to settle for a long, sometimes confusing, domain name.

ICANN has been using a process of ?rounds? to introduce new tlds. When they do create these new tlds, they are generic in nature, like .info or .biz. This creates trademark conflicts. Many companies hold the same word as a trademark, such as Apple Records and Apple Computers. Both are legal trademarks. Both have the legal right to use the word apple to sell their respective products and services.

So which one has the legal rights to apple.com or apple.biz? What if I start a company tomorrow called Apple Printing Services and get a trademark on the word apple to sell printing services? Do I not then have equal rights to use apple.com or apple.net as my domain name?

If ICANN would open the TLD market, so that any company with the technical expertise and the financial capability, could start a new TLD, we would have more option like apple.computer, apple.music, apple.printer. TLDs like .lyr, .atty, .cpa, would crop up. This would help eliminate trademark conflicts.

First come, first serve, in the demand for domain names was the method used and seemed fair when namespace was less congested. Now, if we are going to insure that future generations of people, who are not even on the Internet yet, or who have not even started their business yet, will have the opportunity to get domain names they want, we must create more tlds. ICANN claims there is no demand for new TLDS.

I disagree. Demand is far from being met. It is not fair business practice to have few TLDs where a few companies/people get short one word domain names while the rest must settle for two and in most cases three word domain names. By limiting space with few TLDs, ICANN makes the decision that businesses that were in existence at a certain point in time shall have an advantage over any business created at a later time.

As a city grows, more streets get paved and more buildings get built allowing for more businesses to get good locations, more corner lots if you will. As name space expands ICANN wants businesses to continue to build upward and not outward. They leave new businesses the equivalent of existing on the third and fourth levels Vs having a ground-floor storefront.

Cities grow outward to allow for more development. TLD space needs to grow outward to meet the same demand. Cities that stifle development and that are not business-friendly find their economy in ruin before too long. Cities that do their best to offer more development opportunities to businesses i.e. corner lots, breaks in certain costs, etc., prosper.

It would be uncommon for a city to tell a new business, ?nope can build on that lot, you have to build onto existing buildings above your competitors, so that they have the ground floor and your customers must walk past your competitors to get to where you are.? That is the analogy. If you own design.com already, I must get something like webdesign.com (a 2nd floor location), the next business must get something like websitedesign.com, (3rd floor), the next few businesses can share the 4th floor with greatwebsitedesign.com, websitedesignplanet.com, etc. Others will get the 5th floor with even longer names as new businesses come to the web.

You might say well they only need their business name for their website and that should be easy to get. I would answer that many businesses have the same name and in addition to that, generic keywords in domain names are an advantage to only having your business name as a domain name. People are not searching the web for you, but they do search for what service or product you sell.

ICANN is currently forcing an unfair disadvantage to new business owners and to people new to the web by not allowing them to get good, short domain names for their personal or business use. Not allowing new tlds to be created is an unfair business practice and a restraint to free trade. It is also anti-free enterprise because they are telling me I cannot go into the domain name selling business and that only a few businesses they have selected can do so. They may also be in violation of laws written to avoid monopolies.

Chris McElroy has been an advocate for domain name owners and individual users of the Internet since 1995. He participates in working groups, mailing lists, and forums, that deal with issues regarding domain names, IP Number allocation, and the DNS.

Related articles by Zemanta
Reblog this post [with Zemanta]
March 05, 2010 | Chris McElroy | Comments 0
Read More

Is ICANN Violating Free Enterprise Principles?

Message to ICANN: Let those who want to create a tld, simply register it with ICANN.

If the tld is not already taken, if they have the technical capability to mange the tld, and they have the desire to market domain names on that tld, then let them do so.

It should be similar to the registering of a domain name, except on a higher level, with the added technical requirements. ICANN should be sort of an uber-registry for tlds.

It would be ludicrous for a domain name restrar like go daddy or enom to ask you for a business plan, or a non-refundable application fee, before allowing you to register a domain name. It would be ridiculous for a registrar to have “rounds” of domain name releases of names “they chose” in advance.

Okay, this month, go daddy will be allocating cheaperwebhosting.com, doggrommingmadeeasy.net, and virtualinternetwebnetwork.net. We will be taking applications and public comment during the month of february. We will then spend another month reviewing the applicants business plans to decide who we will allocate the domain name to. If you are not approved to manage the domain name you apply for, your application fee will be held by go daddy until further notice.

Some people will say that is not a good analogy, but it is a perfect analogy. Here is why. If info.com was still available and I registered it. I could then start selling subdomains like car.info.com, computer.info.com, icann.info.com or any other subdomain someone wished to purchase from me. The subdomain is one dot removed from the domain name the same as the domain name is one dot removed from the tld.

There is no longer any reason to believe ICANN is doing anything other than restricting free enterprise and free trade by not opening up the market for tlds. It is no longer acceptable that ICANN should be the one to decide which tlds will or will not be created nor is it acceptable that ICANN gets to choose who can or cannot run a tld.

Do you present a businesss plan to the city you live in before they allow you a business license? No.

Does the city ask you to prove you are financially stable before issuing you a business license? No, as long as you pay the registration fee.

If you apply for a business license to open a clothing store, does the city ask how you will run your clothing store or if you have the necessary expertise to run a clothing store? No.

Does the city think you will hurt them economically if your clothing store goes out of business? No, it’s none of their business.

Is the city concerned that there may not enough demand for yet another clothing store? No, again none of their business.

ICANN not allowing me, or anyone else in the world, to create a tld of our choice in any language we choose, is a blatant violation of our rights. In many countries, America among them, the right to free enterprise still exists. ICANN is denying me that right as an American citizen and doing so when even their own organization exists under American law.

There are no needs for auctions or rounds or anything else. If you want to run a tld, then you register it and start selling domain names. If you fail, you fail, just as in any other business venture you take on.

Artificially restricting namespace to make a few business IP interests happy has to stop.

Chris McElroy has been an advocate for the rights of domain name owners and individuals who use the Internet since 1995 and is currently advocating that ICANN open up the TLD market.

Related articles by Zemanta
Reblog this post [with Zemanta]
March 05, 2010 | Chris McElroy | Comments 0
Read More

Is Your Domain Name Property or just a Service?

This has been a debate on the General Assembly Mailing List of which I’m a member for years. It has been asked in the courts for a number of years as well. Is a domain name real property or is it just a service provided by registries through registrars?

Courts have gone both ways on the subject, sometimes finding that it is real property in some cases and in others finding that it isn’t.

I’ve been a member of the General Assembly, the former DNSO mailing lists, the TLDa (TLD owners) and other groups for some time. We have for the most part always accepted that domain names are real property.

This was posted on CircleID.com

Creditor Can Execute Against Domain Name Where Registry is Located: Office Depot v. Zuccarini

The Ninth Circuit affirmed the district court’s ruling in Office Depot v. Zuccarini [Scribd link], agreeing that a creditor may levy against a domain name in the jurisdiction where the domain name registry is located. The decision is significant for two reasons. First, it affirms (or reaffirms) that domain names are property subject to the claims of creditors. Second, it allows creditors to proceed against domain names where the registry is located, thus allowing creditors to proceed against domain names in one proceeding and more importantly levy against domain names located abroad (where the registry is located in the United States). Overall, this makes getting at a domain name much easier for creditors.

Here is more about court cases involving whether a domain name is property or not from DomainNews.com

I was up late last night cruising through the 44 page docket from the case involving the 141 gambling domain names seized by the state of Kentucky.  This is a landmark case in my opinion and I wanted to read some of the fine print.  It’s pretty clear that this case will be setting some major precedent regarding jurisdiction and domain name use, but there was something else that caught my eye in the document. The groups involved in the case made several points in their efforts to have the case dismissed, but a discussion on domain names being considered property is the one that made me look twice.

The court discusses the issue of domains as property on about page 12 of the docket.

“The Opposing Groups and Lawyers . . . collectively assert that domain names are akin to a telephone number or a business or residential address only; that domain names are but a combination of letters and numbers, which serves as a mnemonic aid, nothing more. They argue that domains are not property, but are rights in a service contract.”

The docket continues for 3 pages discussing this argument and the court reaches the final conclusion

“the Defendants 141 Domain Names are property, and therefore subject to this Court’s in rem jurisdiction or to possible civil forfeiture”

t’s no surprise that the court ruled that domains are property.  What is surprising is who was among this “Opposing Groups and Lawyers”.  According to page 4 of the docket Network Solutions (NSI) and the Internet Commerce Association (ICA) were lumped in to this group.   The ICA, a group consisting of mostly domainers and domain companies, and NSI, a domain name registrar have joined with other gambling industry groups such as PPA, IGC, and IMEGA to present arguments in this case.  Recognizing these entities are not actuallyplaintiffs defendants, the court grouped them all together and classified them as “Opposing Groups and Lawyers” and did provide for their views to be considered. These views are expressed in this case as “domains are not property”.

What do you think? Are domain names actual property or just a service provided to you just like your phone service or services by utility companies?

Related articles by Zemanta
Reblog this post [with Zemanta]
March 04, 2010 | Chris McElroy | Comments 0
Read More

New gTLDs Will Not Impact Trademark Owners Significantly

ICANN, (Internet Corporation for Assigned Names and Numbers), is the body that chooses what new TLDs will or will not be introduced. A TLD is the part of the domain name that goes after the dot. dot com, dot org and dot net are all TLDs as is dot biz, dot info and dot mobi.

A gTLD is a generic TLD like dot com, dot net and dot org. They have also approved sTLDs (special TLDs) like dot museum and dot aero. The whole system of choosing the TLDs they approve is screwed up and it’s done on purpose.

It would be very simple for anyone to surf the web and find whatever they want if the TLDs read like a phone book. dot cpa, dot atty or dot lawyer or dot attorney, dot autos or dot cars, dot appliances, dot cellphones, etc.

There are no technical reasons not to have hundreds of TLDs that make perfect sense to users. It would also reduce the number of trademark vs domain name disputes.

Example: Nissan.cars would not conflict with Nissan.music which might be owned by a guy with the last name of Nissan who has a band. As long as the music guy didn’t sell cars, users would not be confused, therefore no trademark issues.

By convincing ICANN to restrict the number of TLDs and by ICANN only approving com, net, org, mobi, biz, info, museum, aero, pro, etc. corporations can reduce the competition online. They can enforce trademarked names against people who are actually not intentionally infringing on trademarks.

Keeping the namespace limited also creates a false shortage of domain names. If they approved a lot more TLDs there would be less trademark issues to resolve and there would be a lot more competition online making domain names even cheaper to register and allowing people to find a domain name in a space that makes sense, like SwindleScrewumandCheatem.lawfirm

IP attorneys that work for these large corporations would like you to believe that trademark infringement through the use of domain names costs them millions of dollars each year. It might, but that’s only because the attorneys make a ton of dough pursuing claims of trademark infringement even when there is none.

I found this at CircleID.com

Study Suggests Introduction of New gTLDs Will Cost Less than $.10 for Each Trademark Worldwide

Minds + Machines reports: “A quantitative analysis of UDRP data for all open generic Top-Level Domains (gTLDs) concludes that the introduction of new gTLDs will result in approximately 316 new cases of cybersquatting, and that the resultant cost to trademark holders, overall, will be $870,000 per year—less than less than $.10 for each trademark registered worldwide, or about $.44 per trademark registered in the United States. The data show that cybersquatting correlates to registration volume across all open gTLDs, not to the number of gTLDs, but is more prevalent in .com.” A downloadable PDF of this study is available here.

The intellectual property argument against approving new TLDs is just as weak as ICANN’s claims that it would make the Internet unstable.

Related articles by Zemanta
Reblog this post [with Zemanta]
February 24, 2010 | Chris McElroy | Comments 1
Read More

Domain Name Parking Services

If you have a lot of domains that are not developed yet, you should be parking them somewhere that might make you some money with adsense or affiliate ads.

You can install a wordpress blog on them and write a few posts with your adsense or affiliate ads in place.

You can park them with GoDaddy and get some of the adsense revenue.

You can put up just one page with some original content on it.

Anything is better than just paying for the domain name every year until you finally get around to developing it.

My question for the day is, do you park your domain names anywhere and what domain name parking services do you recommend?

Reblog this post [with Zemanta]
February 06, 2010 | Chris McElroy | Comments 0
Read More
Get Adobe Flash playerPlugin by wpburn.com wordpress themes