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WIPO Wants Registrars Held Responsible

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I was reading Mike’s Blog today about WIPO wanting domain registrars to be held responsible for their registrants’ trademark infringing domain names, and I give it a thumbs up.  In fact, I said the same thing back in March of 2008, “Registrars Should Help Prevent Cybersquatting.”

I believe that many people register domain names that have trademarks in them without really knowing the risks involved. When I first started buying domain names circa 2003-04, there were a few trademark names that I purchased.  I didn’t know the legalities of this, and when I found out, I canceled the few that I owned and bought back a few that I had sold, and cancelled them, too.  Although the likelihood of getting sued for names I created out of thin air was small, I didn’t want to deal with them.

I do understand why some companies invest in trademark domain names that receive traffic and generate revenue. It’s a business decision that some companies have to make, but in most cases, new registrations are way more of a liability than a profitable business.  I cringe when I see names for sale on Ebay like MicrosoftProductDownloads.com (or something similar), because they are screaming at Microsoft to file a lawsuit (this one happens to be unregistered). I attribute some of these new registrations and sale attempts to people who aren’t aware of the legal ramifications and liabilty a name like this can have.

I think the domain registrars should be a bit more responsible when it comes to names that are obvious trademarks.  Sure, there is a considerable gray area, but if they were required to warn registrants about potentially infringing domain names (like the Surgeon General warns smokers), there would be a lot less cybersquatting – and consequently less revenue for the registrars.

Upon further review, back in July of 2007, when I first started blogging, I said the following, and I still agree with it today (aside from the term “crime” as it’s not technically criminal).

In my opinion, a majority of trademark inclusive domain names aren’t owned by malicious people, but rather those who don’t know it is against the law. As a measure against unlawfully registering a domain name with a trademark, what if registrars required consumers to check off a box acknowledging that they are aware of the Lanham Act and its penalties before every registration? Perhaps even a brief summary of the law along with the possible penalties of owning/selling/profiting from a trademarked name would act as a deterrent to people who may be unknowingly committing a crime.

I believe the sooner we police our industry, the better things will be for us all.


About The Author: Elliot Silver is an Internet entrepreneur and publisher of DomainInvesting.com. Elliot is also the founder and President of Top Notch Domains, LLC, a company that has sold seven figures worth of domain names in the last five years. Please read the DomainInvesting.com Terms of Use page for additional information about the publisher, website comment policy, disclosures, and conflicts of interest.


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Comments (5)

    dnClips.com - Feeds simple and humble

    That is a good move. Registrars should be made accountable for explicit trademark violations.

    But how are the registrars to know that the trademarks are going to be violated ?
    A person can register apple.net and use it as site selling apple, while another can register it and sell competing computers.

    March 16th, 2009 at 11:54 am

    Adam

    Elliot You are bound by a contract with every domain that you might never have looked at that does part of what you are calling for. . .

    When you register a domain name you are agreeing that you are not registering a domain that violates certain rules. Most people just don’t read that part of the long contract …
    Here’s enom’s for example :
    http://www.enom.com/terms/agreement.asp

    Notice the section on UDRP. Every registrar must include the UDRP portion in to the agreement. So by registering a domain you are agreeing to be held by the rules outlined in this document over here : http://www.icann.org/en/dndr/udrp/policy.htm

    It explicitly states that :

    “By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else’s rights.”

    This is an individuals responsibility and the violation of the “rules” should be the responsibility of the person who enters in the contract to register the domain.

    Trademark violations are a case by case basis and policing it is not the responsibility of a business. It’s like holding Lowes responsible for a break-in because the thief used a hammer they bought at the store.

    Really how much responsibility/burden should we be laying on businesses that sell domains? Maybe ICANN should be responsible for this. Isn’t ICANN a multi-constituency group . . . why just pin the registrars ? Perhaps ICANN could spend some of their hard-earned money on a campaign to teach the “uneducated” people that aren’t aware of the letter of the law.

    Generally though in the case of domains being taken to a WIPO hearing, I think more of these have malicious intent than not.

    March 17th, 2009 at 6:24 pm

    Adam

    Elliot You are bound by a contract with every domain that you buy . When you register a domain name you are agreeing that you are not registering a domain that violates certain rules. Most people likely just don’t read that part of the long contract …
    Here’s enom’s for example :
    http://www.enom.com/terms/agreement.asp

    Notice the section on UDRP. Every registrar must include the UDRP portion in to the agreement. So by registering a domain you are agreeing to be held by the rules outlined in this document over here : http://www.icann.org/en/dndr/udrp/policy.htm

    It explicitly states that :

    “By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else’s rights.”

    This is an individuals responsibility and the violation of the “rules” should be the responsibility of the person who enters in the contract to register the domain.

    Trademark violations are a case by case basis and policing it is not the responsibility of a business. It’s like holding Lowes responsible for a break-in because the thief used a hammer they bought at the store.

    Really how much responsibility/burden should we be laying on businesses that sell domains? Maybe ICANN should be responsible for this. Isn’t ICANN a multi-constituency group . . . why just pin the registrars ? Perhaps ICANN could spend some of their hard-earned money on a campaign to teach the “uneducated” people that aren’t aware of the letter of the law.

    Generally though in the case of domains being taken to a WIPO hearing, I think more of these have malicious intent than not.

    March 17th, 2009 at 6:27 pm

    Mike Robertson

    Adam already beat me to the punch, but I would like to confirm what he stated.

    When someone creates an account at Fabulous, they must agree to our Domain Name Registration Agreement. Part of this agreement is acknowledging that the owner is bound by all terms and conditions of ICANN’s Uniform Domain Name Dispute Resolution Policy (‘UDRP’). Which Adam has posted previously.

    Cheers,

    Mike
    Fabulous.com

    March 17th, 2009 at 9:06 pm

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