If a UDRP panelist believes domainers are the same thing as cybersquatters, is he fit to arbitrate?
I came across an editorial on CNET today by Doug Isenberg, an attorney in Atlanta and founder of GigaLaw.com, and a domain name panelist for the World Intellectual Property Organization. The guest editorial focuses on Whois privacy and why it’s imperative to maintain open access to registrant data for intellectual property and legal purposes. That’s a common opinion I’ve read a million times. Nothing groundbreaking there.
But then I was shocked to read that Isenberg generalizes domainers as cybersquatters:
Today, cybersquatters have rebranded themselves as “domainers.” Popular blogs and news sites track their activities. Industry conferences have sprouted to serve them. And “monetization” services–which quickly let domain name registrants turn otherwise unused, or parked, Web pages into money via affiliate links that often trade on the goodwill established by well-known brand owners–are finding a large and growing customer base of hungry and often shrewd domain name registrants.
All of these practices are costing honest businesses untold sums.
It seems that Isenberg believes use of monetization services is bad and that domainers are bad. I’d hate to have a UDRP decision fall into his hands if he goes in with this bias. Perhaps he’s simply trying to say that monetization of trademarked domains is bad — which is hard to argue with — but this doesn’t come across clearly in his editorial. He goes on to discuss “fixing” the issue:
Who is going to stop these online shenanigans? Apparently not ICANN, which has never revoked the accreditation of a single registrar, even though some of them are among the most popular registrants of domain names. To its credit, ICANN has sought to hire a Compliance Program Specialist, recognizing that violations by registrars “can cause serious detriment to consumers and to the Internet community both directly, and indirectly, by damaging the competitive process that is crucial to a dynamic and healthy market.” Yet the role has remained unfilled for more than a year.
In many ways ICANN’s hands are tied. The organization would like to sanction registrars, but the only thing it can do is “the nuclear option” — taking away the registrar’s accreditation. This is a major step, and it might be warranted for some registars, but how can you do this without first making a warning sanction or fine to the registrar? (ICANN can’t do this.)
Don’t get me wrong. I believe that domain kiting and typosquatting of trademark typos is bad for business. I just think that Isenberg is making broad generalizations about domain name owners…and this conflicts with his ability to serve as a domain name arbitrator. Furthermore, it baffles me that large companies haven’t looked at an affordable solution to people typosquatting its brand names: register as many variations of the domain as possible. It would cost a lot less than hiring lawyers to send off cease & desist letters.
UPDATE: I just reviewed 14 of Isenberg’s UDRP decisions. 13 were slam dunk trademark infringements and the respondent didn’t bother to reply. In the other one he found in favor of the respondent, who proved she didn’t register the domain in bad faith.
UPDATE 2: A reader has tipped me off to some information about Doug Isenberg, who today suggested that people that own domains as investments are cybersquatters. Take a look at CouponCodes.com. The last Whois record in the archive for this domain is Doug Isenberg of Atlanta. Now it is protected by Whois privacy. Apparently people that have contacted Doug in the past about buying this domain received a very high asking price. So in other words, even though his article is about the ills of not having publicly available Whois information, Isenberg is hiding behind domain privacy and is, by his definition, a cybersquatter!
ParkQuick says
Others have discovered that Doug Isenberg himself owns CouponCodes.com (currently privacy protected). It “trades on the goodwill” of the trademarked site CouponCode.com.
http://www.domaineditorial.com/archives/2006/06/21/on-cybersquatters-and-whois-privacy/
Dave Zan says
Actually, Doug’s regged CouponCodes.com since 1999. And I’m sure he didn’t mean all domainers are cybersquatters. 🙂
However, it’s getting harder to see the distinction with some of the registrars themselves allegedly involved in those “shenanigans”.
Editor says
With regards to CouponCodes.com, I’m not saying its a problem becaue of the trademark. The part that gets me is he blasts owning domains without an intended use and using monetization services, but he does that exact thing with CouponCode.com.
Thomas Miller says
Owning a domain name with no intention other than to sell it to the highest bidder is 100% wrong. That is NOT what the domain name system was designed for. You do not have the right to buy domain names for the “investment.” The biggest mistake the NSF ever made was making the Internet open to commercial interests.
Editor says
Thomas, have you ever bought anything on Amazon.com or from another web site? Internet commerce was NOT what the internet was designed for. Does that make it wrong?
Thomas Miller says
Internet commerce may not have been what the WEB was designed for, but it certainly is in the spirit of what the Internet as a whole promised. The underlying spirit of the domain name structure was to make it easier for users to find what they are looking for instead of having to memorize numbers which the human brain is quite bad at. CNET purchased domain names like search.com and computers.com, both domain names many unethical cybersquatters drool over. Those names may have had nothing to do with with CNET’s trademark but nevertheless, they used them in a way that made the Internet community proud. Search.com was one of the first meta search engines around. Heaven forbid that a domain name actually reflects its use. That kind of use of a domain name is very ethical. However, buying a domain name for $12.95 and then trying to sell it for $50,000 is unethical and just plain wrong.
Editor says
What about Store.com and Events.com, both owned by CNET and parked?
Thomas Miller says
They are not trying to sell those. CNET had major plans to become THE Internet portal. Unfortunately, technical innovation lost out to corporate takeovers. Now, due to corporate whoring, CNET has become a sad shell of what it once was. There was no malice intended when the domains were purchased. IMHO, better that CNET own them for possible future development (or sell them at cost to an entity who will make proper use of them) than a cybersquatter asking $50,000.