New Bill Threatens Domain Registrants and Poses Risks to Internet Commerce

[NameCharger]

Snowe Bill Threatens Domain Name Registrants with “Infringement” Enforcement That is More Expansive and Punitive Than the UDRP or Trademark Law

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[TheWatcher]

Originally Posted by NameCharger

Snowe Bill Threatens Domain Name Registrants with “Infringement” Enforcement That is More Expansive and Punitive Than the UDRP or Trademark Law

Full Story

too bad!

[Prospecting]

always focused on generic domains.

never dabbled with anything that could/would infringe.

Was not an easy process, But, I studied the common trademarks and copyrights first and selected domains which did not infringe, then trademarked the domains I registered back in the 1990's.

[DomainsInc]

Originally Posted by Prospecting

always focused on generic domains.

never dabbled with anything that could/would infringe.

If you think its that easy you should look into some past wipo cases that should of been open and shut but instead lost the domain. Anyways, this would only effect those in the states.

[damage]

Thanks for the post.

[Prospecting]

Originally Posted by DomainsInc

If you think its that easy you should look into some past wipo cases that should of been open and shut but instead lost the domain. Anyways, this would only effect those in the states.

I definately don't think it was easy, I studied trademarks and copyrights first, then trademarked the domains I registered back in the 1990's.

[gawnd]

Wow - that bill goes way beyond protecting trademark holders. This could pose serious 1st amendment rights issues depending on the interpretation/enforcement of the vague language in place now. Let's hope it doesn't get through in its present form.

[domaingenius]

Originally Posted by DomainsInc

If you think its that easy you should look into some past wipo cases that should of been open and shut but instead lost the domain. Anyways, this would only effect those in the states.

Yes exactly. We in UK have been noticing that with the Nominet DRS system which seemed to think, for one example, that "bounce" was not a generic term that should defeat a TM for "bounce" . That is why I say domainers need to go on offensive and object to TM applications, not sit and wait for them to be granted and then take their domains. Big business will think of ever more cunning ways to get their hands on domains and they think that they, the "Big Business" control the world and we mere domainers should not be allowed any of the pie !.

DG

[Fatbat]

Exactly. The thread on Knot.com was a perfect example of this. A generic domain, registered before the trademark, taken in a WIPO action.

Total BS.

[NameCharger]

Summary of the Legislation
Notwithstanding its title, the proposed legislation goes far beyond targeting “phishing” – the criminal misuse of e-mail and websites to falsely solicit financial information for fraudulent purposes – an activity that is already illegal and subject to enforcement under a variety of state and federal laws. It also establishes a parallel trademark-like infringement enforcement system that goes far beyond the provisions of ICANN’s Uniform Dispute Resolution Policy (UDRP) arbitration procedures as well as the U.S. Anti-Cybersquatting Protection Act (ACPA).

The proposed law would make it illegal for any person to use a website in violation of the anti-dilution provisions of U.S. Trademark law to solicit any information facilitating the purchase of goods and services by use of false or fraudulent pretenses or “misleading representations” that the solicitation was being made by or on behalf of a government office, nonprofit organization, business, or other entity.

It would also make it unlawful for any person to use a domain name in connection with the display of a webpage or an advertisement on a webpage if—

• The domain name was identical or confusingly similar to the name or brand name of a government office, nonprofit organization, business or other entity.
• The person had actual or implied knowledge that the domain name would likely mislead a computer user about any material fact regarding the webpage or advertisement.

In determining whether the person had actual or implied knowledge of likely misleading effect the courts could look to a variety of factors, including the person’s “intent to divert consumers from the brand name or trademark owner’s online location…that could harm the goodwill…by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the website.” Another factor would be whether the person had offered to sell the domain name to any third party “without having used…the domain name in the bona fide offering of goods and services”, a provision that appears to be aimed directly at “parked” websites consisting solely of advertising links.

Again, despite the bill’s title, none of these trademark-related provisions contain any requirement that the domain name and website had actually been utilized to facilitate a criminal “phishing” scheme. They address essentially the same harms for which the UDRP and ACPA already provide remedies, but in a more expansive manner with the registrant at greater legal disadvantage and subject to harsher penalties.

Enforcement of the APCPA could be undertaken by –

• A state attorney general or any other official of a state
• The Federal Trade Commission (and any violation of the APCPA would be considered to be a violation of the Federal Trade Commission Act as an unfair and deceptive trade practice, and subject to its additional penalties and remedies)
• Federal banking and securities agencies, state insurance commissioners, and the Federal Communications Commission
• Interactive computer services (e.g., ISPs)
• Trademark owners

All of these parties could seek injunctions, enforcement, and recovery of actual monetary damages. In addition, interactive computer services and trademark owners could seek punitive damages for willful and knowing violations – the private right of action granted to these parties in a bill ostensibly aimed at criminal activity is highly questionable. In cases filed by the FTC, FCC, and state officials, cease and desist orders and injunctions could be obtained without any requirement to allege, much less prove, that the domain name registrant had actual or implied knowledge of likely misleading effect.

In actions brought by a state attorney general or other state official monetary damages could be sought in the amount of actual monetary losses or, in the alternative, statutory damages of $250 per violation up to a maximum of $2 million. However, a court could triple the statutory damages award, up to a maximum of $6 million, if it found that the defendant had willfully and knowingly violated the Act or if the unlawful activity included the use of a domain name in violation of the anti-dilution provisions of the Trademark Act. The court could also award attorney fees where a successful suit was brought by a state attorney general or other state official.

My emphasis underlined, most of which is basic good-faith/non-TM registration knowledge, however, expanded powers given to entities which can obstinately invoke reverse domain hijacking not a good thing.

Any members good with forming petitions?

[Keyword Factory]

I would look for some alternate sources of information other than the Internet Commerce Association.

[Acro]

Did you expect something better from a technophobic republican?

[Focus]

you guys are gonna really find this funny...

[EJS]

Originally Posted by Prospecting

always focused on generic domains.

never dabbled with anything that could/would infringe.

With all due respect, I don't think you grasp this Bill. Based on what I have been reading, generic and geographic domain names could now be taken. Injunctions can be ordered without cause. If Bill's Widget Company seeks an injunction from the AG for Widget.com because it is confusing people, they might just get it. The financial penalties are so high, the business risk could be too high. This is serious shit.

Originally Posted by DomainsInc

If you think its that easy you should look into some past wipo cases that should of been open and shut but instead lost the domain. Anyways, this would only effect those in the states.

Since it would effect only US based companies, and since Verisign (the central registry) is located in the US, I understand it will effect .com and .net names no matter where you are (according to a comment from Ron J. on my blog).

[Focus]

Um..yeah this needs to be put to a screeching halt...we all need to get together, pool some funds and lobby against this shit..I smell the supreme court eventually on this issue...again, just using the whole "phishing" scare tactic to target the domain business & monetization...this is where the govt. and corporate america try to take over the Internet & all the money it produces!

[EJS]

Originally Posted by gawnd

Wow - that bill goes way beyond protecting trademark holders. This could pose serious 1st amendment rights issues depending on the interpretation/enforcement of the vague language in place now. Let's hope it doesn't get through in its present form.

EXACTLY!

I just pledged an additional $500 to the ICA. Who will match it?

I am not a political person - in fact I hate politics. But we need to stop this. If you make money from domain names, you need to help the ICA. Who else is going to stand up for us? The public perception is that we are all lazy and cybersquatters. The bill is called the Anti-Phishing Consumer Protection Act. What senator or congressman will vote against it? NONE. We need the legislation changed. The ICA is our best chance.

[Focus]

If I know they can really fight this I'll give them a G..for the good of all of us and our future.

[EJS]

Originally Posted by Focus

If I know they can really fight this I'll give them a G..for the good of all of us and our future.

I don't think anyone else will come close. By the time someone organizes something, the game will be over. If you don't think they are doing the best they can, make a financial contribution and tell them what you think.

[VirtualT]

Originally Posted by EJS

Since it would effect only US based companies, and since Verisign (the central registry) is located in the US, I understand it will effect .com and .net names no matter where you are (according to a comment from Ron J. on my blog).

well theres ya problem, the foundation of the internet shouldn't be held to ransom by the runaway pc US legislature

[Focus]

There goes the domain business