Internet Law: Domain Name Registrations
With the increased frequency of companies realizing the importance of a presence online, there is a need to advertise and sell products and services via the internet. As such, registration of particular domains for e-commerce or other purposes has become of outmost importance in todays online world.
What is a domain?Domain are addresses that host (hold) information over the Internet. As such, domain names usually hold information associated with a particular product or service provided. When an individual enters a web address into their browser, a process for locating the page is initiated. To do so, the internet goes through a process of 'translating' the entered domain name into a numerical code (also known as IP) that is associated to said name. Just as it is with home address, domain names have certain structures or hierarchies. The structure if composed of a top-level (typically what comes after the last dot, i.e. .org); and a second level domain which typically comes after the first dot (i.e. as capitalized here, www.GOOGLE.com). The latter hierarchy is the cause for domain disputes to arise.
CybersquattingCybersquatting is the practice of registering, using or selling a domain name in bad with the intent of profiting from a trademark that belongs to someone else. In other words, is the practice of buying up domain names that use the names of existing marks, business, with the intent to sell the names for a profit to those businesses. It is easier to relate the term cybersquatting, with the act of occupying an abandoned or unoccupied space or building by a person that does not own, rent, or otherwise have permission to use said building (this person is known as the "squatter"). Thankfully, there exist laws that protect business owners from cybersquatters. As such, an individual that suffered or believes to have suffered from cybersquatting, has two options. First and foremost, the individual can use an international arbitration system created by the Internet Corporation of Assigned Names and Numbers (ICANN). This method for alternative dispute resolution, can be brought by any person who submits an ICANN complaint by identifying ALL of the following elements from the domain name in question: (a) that is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (b) that the owner has no rights or legitimate interests in the domain name; and (c) that the domain name has been registered and is being used in bad faith. If the complaint meets all the requirements and prevails in the dispute resolution process, the registered domain name by the cybersquatter can either be canceled or transferred to the complainant. The other process for reclaiming the domain name is by filing a legal suit, in federal court, under the Anticybersquatting Consumer Protection Act (ACPA). Although this process is not an alternative method for dispute resolution, which can be more costly, it does provide for financial remedies, that are not available under the ICANN complaint. Under this process, the trademark owner must also demonstrate a series of requisite similar to those under ICANN, such that the: (a) domain name registrant (cybersquatter) had a bad-faith intent to profit from the trademark, (b) trademark was distinctive at the time the domain name was first registered; (c) domain name is identical or confusingly similar to the trademark; and (d) trademark qualifies for protection under the Lanham Act, (a federal statute that governs trademarks, service marks, and unfair competition).
Other alternativesIt might be important in demonstrating good faith, that contact is first made with domain name registrant, or cybersquatter. Said individual might have a reasonable explanation for the use of the domain name, or even offer selling the domain. The latter might be an alternative to consider when resources are constraint or speed to market is of outmost consideration.