The only problem is, there’s no consumer protection. There’s plenty of protection for big business and the Trademark Lobby, though. So much, in fact, that the Trademark Law, into which the new Anticybersquatting law was incorporated, has been perverted to the point where individuals and small businesses are at risk of losing it all to the big boys. The name for this practice is “reverse hijacking” and has become common place.
The U.S. is also setting a bad example for other countries. Because of the rash of reverse hijackings here, major corporations (and not so major) are using the same intimidating tactics elsewhere. A good example is Chase Manhattan Bank in the U.K. intimidating a legitimate existing business into giving up its name (chase.co.uk) Chase Business Solutions, an internet solutions consultancy) because it could not afford to litigate. They held a funeral on 6/16 for their old company and it’s name. Their new name,SolutionsWarehouse.Com, must now be marketed, costing this small company big dollars. Unfortunately, this is typically what happens when a large company decides it wants your name, whether it is in use or not. Their lack of foresight becomes your loss.
There has been a lot of talk about the President having wanted this bill passed into law. It’s true that he wanted a bill with that title, but not THIS bill. The title is a misnomer in the first degree.
Because of language in the law, if you register a domain name, hold it for later use or decide to sell it along with others, for just about any reason, it can be taken from you. It doesn’t matter if you had no idea that anyone else may want to use it (not that it should matter), or that you have a reason for wanting the name (other than extorting a trademark holder), or even if you had it registered years before someone else. If another entity with deeper pockets and a desire for your name wants it, they can get it pretty easily. Rarely will the individual (Respondent) keep it.
Don’t believe it? Go to this page ICANN | Search UDRP Proceedings and read some of the results of arbitration for yourself. You will notice that there are many more “Transferred” than “Respondent.” There are many “Cancelled” also. Cancelled means the name goes back into the pool for anyone to register.
Here’s the good part. During the pending proceeding, if you are registered with NSI and many others, there is a good chance your name will be placed on “hold” (that is put out of commission) when the complaint is filed. If you have an active site, bye-bye.
The organizations responsible for this fiasco are ICANN (INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS) and WIPO (WORLD INTELLECTUAL PROPERTY ORGANIZATION), which has a set of rules, UDRP (UNIFORM DISPUTE RESOLUTION POLICIES. These rules take the law and twist it out of shape, making it nearly impossible for anyone with multiple names or holding one for later use or resale. Even if the name is generic, it can be taken. Ex. E-Auto-Parts, E-cards, EResolution, crew, and many, many more.
Herein likes the crux of the problem.
The language in the UDRP goes way beyond the scope and intent of the law and the arbitrators generally are in favor of the complainant. The policies and law were written with major influence from the Trademark Lobby. The results are a travesty, ruining individuals and business in droves. Since ICANN began using the UDRP, almost a thousand cases have been filed, most of which have gone to the side of the Trademark Lobby with little consideration for individual rights.
First, you have no rights to refuse arbitration. It is mandatory and built in to the agreement you sign when you register your name. The Complainant has no such mandate and can choose litigation instead. The “Complainant” gets to choose the arbitrator instead of a mututal choice; the Complainant has rights to appeal; the Respondent has none, nada, zilch. In addition, the Complainant can pay to have the last word. For a fee of $150 (to NAF), the Complainant can present a rebuttal to the Respondent’s statement within 5 days of the respondant’s latest due date. What that means is the Complainant can effectively cut off any chance for the Respondant to answer. Do you really think that arbitration can be fair when the arbitrator is paid by the Complainant in order to make a rubuttal? The decisions have cited precedent which the arbitrators have set themselves, many times contradicting the vaguely worded law, and even themselves! Decisions have been wildly inconsistent, so you really have no idea what you are up against.
Oh, lest I forget. There is now another twist. A Respondent won in a court of law. The Complainant did not care for that outcome and then filed a UDRP complaint. The complaint was accepted! The court action did not matter at all! So now we see that ICANN’s UDRP does supercede national laws. This small non-profit corporation has indeed set itself up a governing body that answers to no one.
Can you do anything about it? Little. You can take it to court, of course, IF you have the funds and, when necessary, IF you can travel to the jurisdiction where the complaint is filed. You will have only 10 days in which to locate and hire an attorney, draft the papers and file in court. You can try to reason with the complainant – good luck. You can hire an attorney to fight it for you, again, if you have the funds. Remember, you have only ten days from the decision date to file with the court. Upon notice of the decision, your registrar is obligated to pull your domain. And don’t forget that the UDRP crosses country boundaries. Uh, huh. You could be fighting a battle in Asia, while you live in the U.S. That’s about it.
- It is simple and cheap for the Complainant to file with ICANN for arbitration 2. The arbitrator is chosen by the Complainant.3. While the victim (you) can require a panel of three, you have to pay for it. Most respondents don’t have the means to do so. 4. It is easy for the complainant to have have the last word with NAF. 5. If and when the decision goes against you by the UDRP, your registrar is obligated to pull your domain. 6. The UDRP crosses country boundaries. 7. You have only 10 days in which to file in court if you choose to go that route (if you can afford it). 8. UDRP arbitrators are using precedents they have set themselves and have, in effect, become an organ of law. You lose your domain upon their decision with little or no recourse. 9. Even if you take it to court and WIN, the complainant can still file a UDRP complaint. Circular? You bet. Fair – not at all. Biased for the IP interests? Absolutely.
You don’t have much of a chance.
That’s why the TLDlobby has come to be. There has to be an organized body of individuals who come together to fight for their rights. We do have rights – or we did/should. We want them back! It’s called “due process.”
The United States of America fought a revolution against unfairness and tyranny. Read the Declaration of Independence and see if you don’t agree that if placed in present context, is it surprisingly relevant. This country’s history is based upon free enterprise and another of its liberties is free speech. The internet has been a bastion of these rights since its beginning. Now, however, we are in danger of losing those rights. Not only to big government, but to big business. If it keeps up, corporate America will own and run the internet and no individual will have rights. Also, ICANN will be the ruling entity for the ccTLD’s as well, so no one is exempt. That is why we are working for All individual domain name holders.
What can WE do? We can form a strong body with a loud, strong voice and lobby Congress for relief. We need to change the language of the legislation via amendment to remove some language which makes it much to broad and vague, and we need to make sure that ICANN stays within that law and its own mandate of a bottom-up organization which represents all users of the internet. The DOC is responsible for oversight of ICANN, but seems ineffectual. If there is to be arbitration, it should follow the narrow guidelines set by the Trademark law. In addition, the Trademark law has been in existence since 1946. It is time to take a close look at it to see if it needs changes as well.
Download a logo to put on your website. Most of the press you read is very misleading. The term “cybersquatting” is misused to include anyone who registers a domain name and does not use it or uses it for criticism, parody or almost anything else. The UDRP decisions have gone so far as to say it is “bad faith” to simply register a name and hold it or offer it for sale (quite legal and legitimate), yet big business hoards thousands of names. It is up to us to counter the negative press we are receiving and express our side of the story. HELP US! Spread the word. It’s free!
You also need to look closely at the agreements you automatically accept when you register a domain name. While there are areas which are forced upon them by ICANN, there are others which are up to the registrars themselves. Make yourself aware of what you are agreeing to. Avoid those registrars whose agreements are way out of line, such as NSI. Some agreements have similar clauses in them, but when you speak to them, many will tell you that they will only act on them if absolutely necessary. It’s all very vague, and mostly prompted by ICANN’s rules. The registrars are being held hostage in that way.
On an immediate basis, you should join ICANN’s Membership At-Large right now! There is a small window in which your voice may count for something. We need to show that we care, if nothing else. Go to the ICANN site and click through the the At Large Membership registration. The next thing you can do is register for the DNSO (Domain Name Supporting Organization of ICANN) elections.
You can join us! We have a new discussion mail list. Subscribe here. It’s a low volume mail list and there are options for receiving just digest if you prefer.
You can donate to the cause. We need money, attorneys, writers and other talented people. Fill out our form and indicate where you feel you can help! If you can donate money, indicate that also. We will contact you regarding to whom to mail a check. Any funds donated will be used to lobby for domain owners’ rights. Lobbyists and attorneys are expensive and nothing happens without that effort. We begin in D.C.
PLEASE, whatever you do, get an education! One excellent source is ICANN WATCH. Another is ICB TOLL FREE NEWS. It requires a subscription, but there is a FREE option with a great deal of news available. You will often see references to Judith Oppenheimer of ICB TOLL FREE NEWS on this site and many others. She is a Member of ICANN’s Working Group B, an advocate of our cause and a fine writer. Her site, www.ICBtollfree.com, is amazingly rich in information and resources. You will see her articles and posts on many relevant sites, as well as on Afternic’s forums and Domainwatch.
Also, visit The Domainwatch forum at Delphi. We are new there, but have a lively discussion going on. We can learn a lot from one another. In addition, there is Afternic’scommunity forums. You want to click on “community” and then go to Forums, then the Policy forum. Again, there is a sign up requirement to join, but it’s also FREE, as is Domainwatch.
Find out what can effect you in keeping your domain name(s). I am certain that once you have read the material available, you will want to join us to keep the internet open and free for speech and enterprise world wide.
Feel free to download these (temporary, I’m working on it) logos to place on your web site or homepage. Let people know you stand for free speech and free enterprise on the internet! The wider the exposure, the faster we have influence to affect change.
Please keep in mind that you must add proper HTML code to provide a link to this site. You must also save the graphic to your hard drive or server and not access our server to display it. That is stealing someone else’s bandwidth and is not legal unless you have their permission. The server space for this site is being donated by Cyberactive Solutions, so let’s not abuse it, okay? Remember, if your graphics are in a different directory from your page, you will have to insert your graphics directory into the code. You can view the “source” code from your browser and copy/paste it into your web page.
Once you have placed the graphic and code on your page, I would appreciate your emailing me with the URL. I would like to know who is displaying it.
The only prohibition to using these logos is they cannot be used on any adult sites, nor can they be used on sites which have abusive, threatening or illegal content of any kind. This organization supports all domain name holders with the exception of those operating with anything that skirts or breaks the law of any jurisdiction. For instance, copyrighted material, instructions for overthrowing a government, extortion, illegal money making schemes, spammers, true Trademark infringement, etc. Those are the things which will cause a domain owner to lose the name and the site in any court of law.
We’re on the honor system here, so downloading the graphic implies that you agree to the above terms. Thank you for understanding.