CircleID

Eric,

This was one of several suits Verizon has brought on the subject of domain tasting.

Considering that most domainers (and their trade organization, the ICA) have been opposed to massive tasting which has only been conducted by a handful of organizations, I'm curious to know the numerical basis on which you characterize the suit as involving "common" or "standard" domainer practices.

Can you elaborate on how common the practice of domain tasting is?

The question becomes what can domainers do to improve "the standard risk-management that domainers claim protect them from cybersquatting liability." The trademark "scrubbing" obviously did not serve its purpose here.  These domains are not even arguably generic or merely descriptive, which is likely why the court was so inclined to hold Navigation Catalyst's actions were in violation of the ACPA. 

As Mr. Berryhill notes, domainers have been opposed to not only massive tasting, but also clear typosquatting.  However, domainers need to ensure that whatever risk-management mechanisms they use coincide with that vehement opposition to tasting and squatting.  A more detailed "scrubbing" is likely the best way to limit problematic domains (such as the ones in this lawsuit).  While offering to transfer domains to trademark owners may work in some situations, some companies may not ask and simply choose to have a court order a transfer.  Therefore, policing a domain portfolio requires an initial risk assessment, regular auditing, and possibly domain purging (i.e. getting rid of problematic domains).  Verizon is definitely coming, and others may follow.  Is your domain portfolio ready?

The word "domainer" presupposes the legitimate buying, selling and monetization of domain names. The word "cybersquatter" means the illegal and intentional act of registering domains which infringe the trademarks of third parties.

Navigation Catalyst is not a "domainer" in my book.  It is a mass cybersquatter plain and simple. None of the domain names held in the portfolio at issue in the above case were generic or descriptive.  All of them were obvious typos of Verizon's trademarks. Isn't it time we created distinct terminology between those who legitimately speculate in the generic and descriptive domain market and those who set out to divert trademark protected traffic?

Most domainers find the business model of Navigation Catalyst - mass registration of domains which include trademark protected words - to be as distasteful as trademark holders.  You can read more commentary about another version of Eric Goldman's Verizon v. Navigation Catalyst Systems cybersquatting post here.

Isn't it time we created distinct terminology between those who legitimately speculate in the generic and descriptive domain market and those who set out to divert trademark protected traffic?

...which was the intended purpose of the term "domainer" as a self-identification mechanism among domainers.

Your point is well taken, but there will always be those who harbor a reflexive distaste for the fact that many domain names have economic value independent of any trademark claim. 

There are indeed organizations which have very large portfolios of domain names.  The "typical" or "standard domainer" in my experience are everyday folks with a real day job who supplement their income by managing and trading on domain collections of a few dozen to a few hundred.  Quite often, the alleged cybersquatter in a UDRP dispute is defending one of the only domain names they have (e.g. WIPO D2000-1202, WIPO D2002-0839, NAF 547889).

Using the domain name decal.com to advertise the sale of, get this, decals - is not even to avoid being branded as a cybersquatter in the eyes of the endlessly covetous - WIPO D2008-0585.

However, cybersquatters have been consistently and rightfully losing ACPA cases since its enactment.  At the end of the day, "cybersquatting" is an offense of intent in a given factual context, and not a status offense.  Surely, John Zuccarini also had quite a few perfectly defensible domain names, and certainly the most careful domain registrant will always have domain names which are the subject of a trademark claim in one jurisdiction or another (e.g. witness the new "duty" of a US domain registrant to conduct a search using the Brazilian Google.com.br before thinking of registering a domain name postulated in the dissent to WIPO D2008-0389.

The occasional accusation, and the occasional loss, is a business/legal risk like any other.  If I am "filtering" a domain name list that includes ILikeCheer.com then is the fact that "CHEER" is a famous trademark relevant to my use of the domain name in connection with cheerleading?  It can be if some clever PPC advertiser figures out how to get their detergent ads on my website without my knowledge.  But, again, that's simply a normal risk of loss like any other business.  We never refer to the famous "patent infringer Microsoft" or "anti-trust violator Microsoft" even though that perfectly legitimate company has racked up some of the most stellar judgments when it has run afoul of patent law or anti-trust law.

So, what do we call companies like Microsoft, which from time to time violate patents?  Or companies like Dell, which from time to time violate consumer credit laws (as the State of New York recently determined)?  Or companies like Verizon which apparently has violated laws which motivate the President of the United States to lobby for criminal immunity on their behalf?

We call them businesses, and every business has its peculiar recurring legal risks. Your local grocery store will be sued more times this year for negligence (slip and falls) and defective products than the average "domainer" will be accused of cybersquatting.

Ultimately, the name calling is not as productive as the day-to-day grind of resolving what are, at bottom, fact-specific disputes.