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Typosquatting: A Solution

Alex Tajirian

Typosquatting's negative effect on the surfing experience can be easily eliminated, and in a way that allows all parties to make money. What's called for is an affiliate program.

You would not be happy if you typed a domain name into your browser and wound up in nowhere land because of a simple misspelling. That's the negative surfing effect of typosquatting.

In general, if actions of one party have a harmful impact on someone else, taking measures that affect the harm causing party can mitigate the impact. The measures can compensate the harmed party or provide the harm causing party with incentives for giving up the trouble-causing actions. IPonFire's carrot-and-stick strategy for solving potential brand name infringements in domain names can be easily adapted to tackling the undesirable impact of typosquatting.

Another incentive-based solution is to reward the typosquatter for directing traffic from the typo domain to the non-typo site. This can be achieved by forwarding the domain name to the non-typo site. A non-typo domain-name owner can set up an affiliate program for traffic directed to the owner's site. The typosquatter has an incentive to join such a program, since a visitor to a typo domain was most likely trying to get to the non-typo domain. Such a visitor will keep trying to find the intended site, not settle for clicking on the parking links found in nowhere land. However, each company should not manage its own affiliate program; instead economies of scale favor a third party.

By Alex Tajirian, CEO at DomainMart
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Related topics: Cybercrime, DNS, Domain Names, Law
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Re: Typosquatting: A Solution Brian Hall  –  Feb 13, 2008 3:03 PM PDT

Interesting proposals.  I would assume the domainer community would not like IPonFire's choice of words.  Domainers vehemently reject any affiliation with typosquatters. 

I am skeptical about giving typosquatters yet another incentive, besides click-through traffic, to register domain names incorporating typographical erros of owned trademarks.  I continue to believe that defensive registrations are the key to avoiding typosquatting.  Services that provide lists of possible typos of a trademark owner's mark may be the best place to start.

Threat letters, negotiation, the UDRP, and even ACPA litigation continue to dominate as the means of redressing typosquatting.

Re: Typosquatting: A Solution Frank Michlick  –  Feb 13, 2008 4:36 PM PDT

Interesting post - I am not quite sure exactly what you are referring to by "IPonFire‘s carrot-and-stick strategy". I visited their site and couldn't really find any details about their approach. Actually, make that "your site".

I think at least for new companies entering the market it would be sensitive to make sure that they own all the typo-variants of their names as they launch their website. At least that's what we did for our launch of SharedReviews, we registered about 150 typo variations of our name. And that is a lot cheaper then having to file UDRPs for all of these names.

Consider this as a possible approach for new brands.

Best regards,
/Frank

Re: Typosquatting: A Solution Enrico Schaefer  –  Feb 14, 2008 6:40 AM PDT

I agree that it makes little sense for trademark holders to embrace and reward typosquatters who are illegally diverting traffic from their domains. Typosquatters need to be penalized for their actions, not rewarded.  The current problem is that the penalties are too few with the transfer of a domain being the likely outcome.

Alex does raise an interesting point. Typosquatting is rampant
with few good remedies available.  Will some trademark holders eventually raise the white flag and protect their trademarks by entering into licensing arrangements with typosquatters? Will some decide to get in bed with the enemy?

The answer may be yes in limited circumstances where the typo is arguably a generic word, the trademark being protected is weak or there are competing legitimate uses for the word. In these circumstances, a prudent business might decide to 'do a deal' with the typo domain registrant in order to improve their traffic and trademark strength.

Re: Typosquatting: A Solution Alex Tajirian  –  Feb 14, 2008 7:56 AM PDT

Brian Hall said:

Interesting proposals.  I would assume the domainer community would not like IPonFire's choice of words.  Domainers vehemently reject any affiliation with typosquatters. 

I am skeptical about giving typosquatters yet another incentive, besides click-through traffic, to register domain names incorporating typographical erros of owned trademarks.  I continue to believe that defensive registrations are the key to avoiding typosquatting.  Services that provide lists of possible typos of a trademark owner's mark may be the best place to start.

Threat letters, negotiation, the UDRP, and even ACPA litigation continue to dominate as the means of redressing typosquatting.

Brian, you are correct in that click through traffic has given incentives to typosquat. Nevertheless, the stick can be easily used to punish such registrations as of, say, today. Thus, the proposal would not create an incentive to fuel a new round of domain tasting.

Having “[t]hreat letters, negotiation, the UDRP, and even ACPA litigation continue to dominate as the means of redressing typosquatting” does not imply that they will continue to be viable instruments to counter the harmful byproduct of such registrations, which in many cases is legal.

As for the labeling of typosquatting, I agree that it is an unfortunate misnomer. A better choice of words would be “domain complementors,” in that the value of the combined ownership of typo and non-typo domains is greater than the sum of individual names. Although not a catchy name, it represents a more accurate description of the benefits of such domains.

Re: Typosquatting: A Solution Alex Tajirian  –  Feb 14, 2008 7:58 AM PDT

Frank Michlick said:

Interesting post - I am not quite sure exactly what you are referring to by "IPonFire‘s carrot-and-stick strategy". I visited their site and couldn't really find any details about their approach. Actually, make that "your site".

I think at least for new companies entering the market it would be sensitive to make sure that they own all the typo-variants of their names as they launch their website. At least that's what we did for our launch of SharedReviews, we registered about 150 typo variations of our name. And that is a lot cheaper then having to file UDRPs for all of these names.

Consider this as a possible approach for new brands.

Best regards,
/Frank

Frank, my apologies to all for the lack of clarity. For a brand-related problem, the IP owner can steer problem-name owners into cooperating through a carrot and stick strategy. The carrot is to buy ad space on the problem site. As such, an ad link gives legitimacy to the advertising website, which also increases click rates on other ads, and thus, increases the domain owner’s revenue. The stick is to hint at halting the ads and/or at legal action, with followthrough when necessary.

For a typo-related problem, an affiliate program - to forward traffic to the non-typo domain - can be more effective. The typo domain owner has an incentive to join such a program, since a visitor to a typo domain was most likely trying to get to the non-typo domain. Such a visitor will keep trying to find the intended site, not settle for clicking on the parking links found in nowhere land.

As for new companies, I agree with you. Nevertheless, they should also own a portfolio of vertical domain names representing areas they might expand in, while giving the impression of strong market presence.

Re: Typosquatting: A Solution Alex Tajirian  –  Feb 14, 2008 8:00 AM PDT

Enrico Schaefer said:

I agree that it makes little sense for trademark holders to embrace and reward typosquatters who are illegally diverting traffic from their domains. Typosquatters need to be penalized for their actions, not rewarded.  The current problem is that the penalties are too few with the transfer of a domain being the likely outcome.

Alex does raise an interesting point. Typosquatting is rampant
with few good remedies available.  Will some trademark holders eventually raise the white flag and protect their trademarks by entering into licensing arrangements with typosquatters? Will some decide to get in bed with the enemy?

The answer may be yes in limited circumstances where the typo is arguably a generic word, the trademark being protected is weak or there are competing legitimate uses for the word. In these circumstances, a prudent business might decide to 'do a deal' with the typo domain registrant in order to improve their traffic and trademark strength.

Enrico, I agree, “typosquatting is rampant with few good remedies available.” Moreover, some of the “good” remedies are not necessarily good for the shareholders.

Re: Typosquatting: A Solution Frank Michlick  –  Feb 14, 2008 8:16 AM PDT

Thank you for your response Alex. However I don't think the carrot & stick approach is going to work very well for most typo domains, keeping in mind the following:

1) Most owners of typo domains are already willing to take a loss by making sure that the PPC ads displayed on their domains are not targeted to match the product or service of the company they are "squatting". This is often done in order to have a better way of protecting the domain, so you will see generic untargeted landers on those domains.

2) Withdrawing a single ad, or even a set of ads will normally not cause the typosquatter a significant loss. They might now even notice it. Also the brand owner is unlikely to be able to target advertising directly to said domain (see #1) above). If they were, that would be giving them more leverage though, considering the "infringement" becomes bigger at the point when they (or competitors) have their ad on the domain.

3) Lastly I sometimes wonder how a domain that includes a brand can be said to constitute "squatting", when dealers will be allowed to advertise the manufacturer's brand. Would it be legitimized if the "squatter" all of a sudden becomes a retailer for said brand, or maybe just an affiliate as you suggest?

/FM

Re: Typosquatting: A Solution Enrico Schaefer  –  Feb 14, 2008 9:06 AM PDT

3) Lastly I sometimes wonder how a domain that includes a brand can be said to constitute “squatting”, when dealers will be allowed to advertise the manufacturer’s brand. Would it be legitimized if the “squatter” all of a sudden becomes a retailer for said brand, or maybe just an affiliate as you suggest?

Registering a domain that includes a brand (trademark protected) is illegal under the Anti-Cybersquatting Consumer Protection Act and a violation of the UDRP and similar TLD policies. Dealers are sometimes allowed with certain limitations to market brands by using those brand names on their web sites and other advertising activities.  Absent a specific license, dealers can not use a trademark protected brand name in a top-level domain registration.

In short, domain names are special as noted in this legislative history analysis of the ACPA and specifically protected. Use of trademarks on web sites is subject to a distinct analysis and may, or may not, be lawful.

Re: Typosquatting: A Solution Alex Tajirian  –  Feb 17, 2008 4:59 PM PDT

Frank Michlick said:

Thank you for your response Alex. However I don't think the carrot & stick approach is going to work very well for most typo domains, keeping in mind the following:

1) Most owners of typo domains are already willing to take a loss by making sure that the PPC ads displayed on their domains are not targeted to match the product or service of the company they are "squatting". This is often done in order to have a better way of protecting the domain, so you will see generic untargeted landers on those domains.

This is a defensive mechanism, which, as you suggest, is value destroying. Under the cooperative agreement the typo owners will be able to capture this foregone value, in addition to value from increased visitor trust and ads to the non-typo site.

2) Withdrawing a single ad, or even a set of ads will normally not cause the typosquatter a significant loss. They might now even notice it. Also the brand owner is unlikely to be able to target advertising directly to said domain (see #1) above). If they were, that would be giving them more leverage though, considering the "infringement" becomes bigger at the point when they (or competitors) have their ad on the domain.

3) Lastly I sometimes wonder how a domain that includes a brand can be said to constitute "squatting", when dealers will be allowed to advertise the manufacturer's brand. Would it be legitimized if the "squatter" all of a sudden becomes a retailer for said brand, or maybe just an affiliate as you suggest?

I agree with you regarding the misnomer, as I noted in my response to Brian above.

/FM

Frank, you and I can find intelligent arguments as to why it will and will not work. Nevertheless, although such arguments might not lead to sloving the harmful effects of typos, they would be very useful in designing effective cooperative Web sites, whereby the typo owners would be in a better position to capitalize on cooperation without having to compromise design and content. Moreover, we agree that there are situations where a cooperative arrangement would work, as the experiment would be worth performing, would have minimal downside risk, and can also be value adding to non-typo and brand name owners.

Regards,
Alex

Re: Typosquatting: A Solution Frank Michlick  –  Feb 17, 2008 5:11 PM PDT

One more ;-)

If we can find a better way to handle typo domains, we should also take a closer look at ISPs, DNS providers and Browser and Toolbar Manufacturers, which also today capture a growing part of typo traffic and monetize it.

/FM

Re: Typosquatting: A Solution Alex Tajirian  –  Feb 18, 2008 8:45 AM PDT

Frank Michlick said:

One more ;-)

If we can find a better way to handle typo domains, we should also take a closer look at ISPs, DNS providers and Browser and Toolbar Manufacturers, which also today capture a growing part of typo traffic and monetize it.

/FM

Frank,

Good point.

But, I don't see why we should reject models that don’t simultaneously explain relativity and quantum mechanism.

Regards,
Alex

Re: Typosquatting: A Solution John Berryhill  –  Feb 19, 2008 7:54 AM PDT

Another incentive-based solution is to reward the typosquatter for directing traffic from the typo domain to the non-typo site.

To a certain extent, this happens automatically if the brand owner is a participant in PPC advertising in the first place.  The majority view among brand owners amounts to "I shouldn't have to pay for traffic to my website." A minority realize that they have a choice between (a) spend enormous amounts of money on typo variant domain names without any evidence that the money will result in visitor traffic, or (b) spend the same money on PPC and let the typosquatters take the financial risk that a typo variant domain name will not earn its own keep.

The notion that registration of a typosquatted domain name has the effect of "diverting" visitors bears some reflection.  Let's start with your famous brand "EXAMPLE", and your website "example.com".

Today, a finite and measurable proportion of your potential visitors are typing "exzmple.com" instead of "example.com".  The domain name exzmple.com is not registered by anyone.  Are those visitors being "diverted" by anyone?  Of course not.  What they see when they type exzmple.com depends on their browser settings and their ISP.  Most likely, they are directed to paid search by either their browser maker or their ISP.

So, next week, along comes the typosquatter who registers the domain name exzmple.com.  He puts up a PPC page.  The PPC optimization software recognizes that it obtains the highest click through rates for displaying your own PPC ad directing visitors to your own site.  Is anyone being "diverted"?  In that situation, no, but you are now paying someone else to receive potential customers.  Leaving aside the fact that this is the very definition of advertising and why you pay for it, let's consider real diversion - instead of putting up your ad, the typosquatter puts up someone else's ads.

Practically, diversion of that type actually decreases the typosquatter's revenue.  People who type "exzmple.com" looking for "example.com" are more likely to click on a link that will get them to example.com.  If they don't see one, they are more likely to say "another dang parking page" and re-type the URL than they are to go somewhere else.

So, in situations where the brand owner already has an advertising program that includes PPC, the brand owner is most likely receiving traffic from typosquatted domain names in the first instance.  The only choice is one of preference between (a) having mis-spellers go off into ISP , browser, or error-message land (b) paying for PPC links to recapture that traffic or (c) paying for geometrically increasing numbers of variant domain names.  However the mere fact of registration of the domain name by the typosquatter does not change the frequency by which people mis-type your brand.  Those mis-spellers have already been "diverted", the question is finding, within the context of your advertising goals, an economically acceptable means of getting them to your site.

The "value destroying" effect noted above comes into play with dictionary-word marks and domains.  For example, an enlightened registrant of "ShellProducts.com" will advertise coral jewelry, pearls, seashore souvenirs etc., and will avoid petroleum products, or else the registrant will risk losing the domain name.  The resulting effect is that visitors to ShellProducts.com who were indeed looking for petroleum products won't find a link to them - and that value is lost to both Shell Petroluem and the domain registrant.  But that state of affairs is a natural consequence of the all-purpose binary argument which boils down to:

"He is linking to my products, ergo he is a cybersquatter."

or

"He is not linking to my products, ergo he is diverting my customers and is thus a cybersquatter."

The second argument falls apart in the context of a descriptive or otherwise non-distinctive alphanumeric string, but the conscious avoidance of the "trademark relevance" of otherwise descriptive and generic words by domain registrants, and the resulting lost value, is not a situation brought about by domain registrants.

Re: Typosquatting: A Solution John Berryhill  –  Feb 19, 2008 11:54 AM PDT

Absent a specific license, dealers can not use a trademark protected brand name in a top-level domain registration.

(n.b. "top-level" domain refers to .com, .net, .org etc.)

Enrico,

Are you seriously suggesting that if I sell, for example, used Ford cars, that I cannot use "ISellUsedFordCars.com"?

Run, do not walk, to the Seventh Circuit decision in Ty v. Perryman:

http://www.projectposner.org/case/2002/306F3d509

But this case is unusual because, given Perryman's status as a seller in the secondary market created as a result of Ty's marketing strategy, we cannot imagine a state of facts consistent with the extensive record compiled in the summary judgment proceeding that could possibly justify an injunction against Perryman's representing in her business name and Internet and Web addresses that she is doing what she has a perfect right to do, namely sell Beanie Babies.

Re: Typosquatting: A Solution Enrico Schaefer  –  Feb 19, 2008 2:07 PM PDT

John:  I would have trouble running to the Ty decision given its tortured logic and Posner's misapplication (stated more lightly 'extension') of the first sale doctrine. Thanks John, I will now be gagging for the rest of the afternoon!

As I recall, the Ty decision by Posner left the injunction in place to preclude defendant from selling anything beyond genuine beanies. So a used car salesman (who always sells multiple brands) would be precluded from using "ISellUsedFordCars.com."

There is a lot of contrary authority to the Ty court's proposition that a reseller of genuine goods can use a mark beyond the limited purposes of display or labeling those goods under the genuine mark. Using a third-party trademark to label, display or post info on a web page about a genuine good is quite different than using a mark in a domain name. (See Designer Skin, LLC v. S&L Vitamins, Inc., 2007 U.S. Dist. LEXIS 19506 involving use of trademarks on web page and meta tags).

John:  I know you are getting older :-) but I also know from you pic that you are an outdoorsman. So grab you hiking stick and scramble your way up the rocks to the Anlin Indus. v. Burgess decision which distinguished Ty and noted the limited nature of that ruling:

However, as the Court explained in its February 6, 2007, order denying Defendant's motion to amend, the Ty case is distinguishable. The domain name at issue there contained only a portion of Ty's trademark, i.e., "Beanies," versus the use of the entire trademark in Defendant's domain name. Moreover, "bargainbeanies.com" does not reference the name of the actual company that produces the product, while "www.anlinwindows.com" refers to the name of actual company that produces the Anlin windows. The Ty case, then, does not support Defendant's argument that his use was lawful and proper, nor does it negate a finding of bad faith.

(I know, John, District court unpublished decision. I am doing my best here man!).

The concept that anyone who is selling a genuine product (for instance a shoe store selling Nike shoes) can register some version of the Nike in a domain name, is pretty hard to take under the plain language of the ACPA and the extremely limited nature of the first sale doctrine. 

The funny thing is that if Ty had brought there case before an UDRP arbitrator, they very well might have won.

Thanks for the comments John.

Re: Typosquatting: A Solution John Berryhill  –  Feb 19, 2008 5:49 PM PDT

The funny thing is that if Ty had brought there case before an UDRP arbitrator, they very well might have won.

UDRP decisions are all over the map on this issue.  "Which" UDRP panelist matters more than "an" UDRP panelist.

http://domains.adrforum.com/domains/decisions/132449.htm

The Panel finds that the domain names and now registered to Respondent, Garry Skaggs d.b.a. Garry Skaggs Company, be transferred to Complainant, H-D Michigan, Inc., and the domain names , , , , , and be retained by the Respondent.

NAF 97097:
Caterpillar Inc. v Stephen R. Vine
usedcat-auction.com, usedcaterpillarspecialistauction.com, catauctions.com, usecaterpillarspecialist.com
Transferred

NAF 97302
Caterpillar Inc. v Neal McKean
usedcaterpillars.com, caterpillarsused.com, b2bcaterpillars.com, used-caterpillars.com, used-caterpillar.com, used-cats.com
Claim Denied

There are a slew of UDRP decisions addressing "parts", "repairs", and other aftermarket products and services relating to branded products.  One decision involving Okidata makes a fairly good pass at synthesizing a UDRP rule of general applicability to the entire class of disputes of this kind. 

On the "pretty hard to take" scale, I often marvel at UDRP decisions which say things like "The Respondent is selling the Complainant's product and is therefore a competitor." Ummmm… okay… but there are a considerable number of manufacturers who do seem to encourage people to sell their stuff. 

I can't buy antique Coca-Cola collectibles at coca-cola.com.  Coca-Cola doesn't sell antique Coca-Cola collectibles, and I can't see the utility of a system that renders it unlawful for someone to identify just WTF they sell on their website in a domain name - even if they sell antique Coca-Cola collectibles.  It is lawful to sell them. Maybe it's a personal thing, but I can't wrap my head around having to contort the subject matter of one's website to:

Antique-Collectibles-Relating-To-A-Brown-Fizzy-Drink.com.

Whether a given set of facts is "pretty hard to take under the plain language of the ACPA" I guess depends on what is "plain" in:

(ii) Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.

That is a largely subjective and mandatory ("shall not") exemption. A a requirement of "reasonable grounds" is not a requirement of rigorously and absolutely legally unassailable correct grounds - it is simply one of reasonableness. Boiling it down as "plain language", the guy selling Nike shoes who registers ISellNikeShoes.com is fine if (a) he believed it was okay to truthfully declare what he sells, and (b) he had a reason to believe it. 

Now, if you are going to kick out condition (b) there by saying, "but the ACPA makes it unlawful" - that's a circular argument.

IMHO, the guy selling antique coca-cola collectibles at antique-coca-cola-collectibles.com is not going to draw sharp gasps of shock from a jury at his manifest unreasonableness in simply saying, "Yeah, I deal in antique Coca-Cola collectibles, so that's what I registered as a domain name." I mean, what sort of maniacal bad faith actor would do such a thing?

If I sell Nike shoes, then "I sell Nike shoes" is an indisputably true statement of fact.  There are those who have not sold me on the underlying First Amendment issue who find it "pretty hard to take" that a true statement of fact, even in the limited context of commercial speech, can be unlawful merely because the manner of utterance is within a domain name.  I don't sing in the choir of that church, but I do visit the services from time to time.

Re: Typosquatting: A Solution Enrico Schaefer  –  Feb 20, 2008 9:36 AM PDT

John:

There are those who have not sold me on the underlying First Amendment issue who find it “pretty hard to take” that a true statement of fact, even in the limited context of commercial speech, can be unlawful merely because the manner of utterance is within a domain name.

So you don't buy the underlying premise of the ACPA that a domain name is more analogous to the company name, the name above the door of the business or any other example of a 'use' which suggests, ownership, affiliation or sponsorship? While 'truth' is an easy word to throw around, the use of trademark in a domain name by a person that resells goods of the trademark holder is not 'truthful' if it suggests ownership or sponsorship that does not otherwise exist. While 'truth' suggests that there is no risk of consumer confusion, that begs the question of what the use of a trademark in a domain really says.

I think it is disingenuous to argue that generic domain names are extremely valuable (i.e. a primary argument of domainers who are in fact realizing tremendous value from their domain names) and at the same time minimize their de facto importance of trademark protected domain names as identifiers of source or origin of goods and services. 

I do agree that the bad faith criteria places too much emphasis on intent.  Many domain registrants who use trademarks in domains (ie resellers) do so with the subjective belief that there is absolutely nothing wrong in doing so.

Re: Typosquatting: A Solution John Berryhill  –  Feb 21, 2008 12:07 AM PDT

So you don’t buy the underlying premise of the ACPA that a domain name is more analogous to the company name, the name above the door of the business or any other example of a ‘use’ which suggests, ownership, affiliation or sponsorship?

No I don't.  And if that "underlying premise" is evident in the plain language of the statute or the legislative history, then I'd like to see a citation to that.  The ACPA was a direct reaction to the view that Panavision had stretched the "in commerce" requirement of Section 43(a), and was primarily directed to the classic cybersquatting situation of someone registering a domain name corresponding to a trademark and then holding it for ransom.  I suppose one of the advantages of "getting older" is still remembering things that were relevant years ago.

Because if that's what a domain name, without more, is analogous to, then it is curious that the USPTO requires more than use of a domain name as an address in order to establish use in commerce as a mark.  If it was analogous to the sign over the door, then I gather you didn't like In Re Eilberg very much either.

I do agree that the bad faith criteria places too much emphasis on intent.

Um… the relevant phrase in the ACPA is "bad faith intent".  Intent there is acting as the object noun.  "Bad faith" is an adjectival modifying phrase.

That is like saying you think the "beautiful" criteria of "Enrico loves his beautiful wife" places too much emphasis on "wife". 

The plain language of Section A is "Whoever… with a bad faith intent to profit..."

A domain name *may* act as the "sign above the door" in some circumstances, or it *may* act as a site content descriptor in other circumstances.  But even if I was driving down the road and saw a sign in front of a car repair shop saying "We Fix Volkswagens", I would not naturally assume they were sponsored or authorized by Volkswagen to fix them.  And that was the pretty much the entire basis of the VW v. Church decision in Church's favor.

Why would I assume that every gas station with a "Marlboro $3.99" sign out front is sponsored, authorized or approved by RJ Reynolds?  I take it to mean they sell cigarettes - and not just Marlboro brand either.

Stay away from New York.  If you walk past an electronic store with a "Nikon" sign hanging out front, and then go inside to see all of the things they sell inside, you might have an aneurysm.

I think it is disingenuous to argue that generic domain names are extremely valuable (i.e. a primary argument of domainers who are in fact realizing tremendous value from their domain names) and at the same time minimize their de facto importance of trademark protected domain names as identifiers of source or origin of goods and services.

That's a false dichotomy.  "Martindale Hubbell" is an extremely valuable brand in the legal profession, but there is a darn good reason why they paid a premium to purchase lawyers.com.  Trademarks are indeed important identifiers of source or origin, and if I am a retailer of Nike shoes, I had better darn well be selling shoes that originate with Nike at ISellNikeShoes.com. 

I would expect to find Nike at Nike.com.  Since they manufacture shoes that are sold by a variety of retail establishments, I would not expect to be able to buy Nike shoes at Nike.com (can you?), nor would I assume that ISellNikeShoes.com was being operated by Nike.  I would assume it was some guy selling Nike shoes just like any of a zillion retail establishments that sell Nike shoes.  Why would Nike use such a dumb domain name as ISellNikeShoes.com for their official site instead of Nike.com?

Would you seriously make that assumption? 

What Ford dealer in your world sells "used Ford car parts"?  Ford dealers don't sell used Ford car parts.  But if I've got a junkyard full of Expeditions, and I'm tearing out the parts to sell them, then UsedFordCarParts.com seems like a perfectly logical domain name.  Anyone looking for "used Ford car parts" is most certainly not looking for an authorized dealer, because every mechanic on the planet knows you can't get used parts from a dealer.

http://www.wipo.int/amc/en/domains/decisions/html/2001/d2001-0903.html

Respondent is an authorized seller and repair center, is using the okidataparts.com site to promote only OKIDATA goods and services, and prominently discloses that it is merely a repair center, not Oki Data itself. It has not registered numerous okidata-related domain names, and has not improperly communicated with Oki Data customers.

Complainant has not presented any other evidence that undermines the bona fides of Respondent’s use. Accordingly, the Panel finds that the Respondent, as an authorized sales and repair dealer for Complainant’s goods, has a legitimate interest (under the Policy) in using the Domain Name to reflect and promote that fact. See, e.g., Columbia ParCar Corp. v. S. Burstas GmbH, Case No. D2001-0779 (WIPO Aug. 23, 2001); ABIT Computer Corp. v. Motherboard Superstore, Inc., Case No. D2000-0399 (WIPO Aug. 8, 2000); Weber-Stephen Products co. v. Armitage Hardware, Case No. D2000-0187 (WIPO May 11, 2000). See also K&N Engineering, Inc. v. Kinnor Services, Case No. D2000-1007 (WIPO Jan. 19, 2001) (finding that the use of a manufacturer’s mark in a Domain Name merely "provide[s], via an electronic medium, the advertising and sales functions related to the business of an authorized distributor of the Complainant").

...

Accordingly, the Panel denies Complainant’s request that the domain name be transferred.

Many domain registrants who use trademarks in domains (ie resellers) do so with the subjective belief that there is absolutely nothing wrong in doing so.

Why do you suppose they think that way? Do you think they are evil? Or are they crazy?

Re: Typosquatting: A Solution John Berryhill  –  Feb 21, 2008 12:09 AM PDT

Anyway, I gather Alex understands why his idea is a non-starter.

There are those who believe it is unlawful to identify the goods advertised at a website in a domain name - even when the trademark is properly spelled, let alone mis-spelled.

Re: Typosquatting: A Solution John Berryhill  –  Feb 21, 2008 12:15 AM PDT

Um… the relevant phrase in the ACPA is “bad faith intent”.

And, Enrico, let's read more of the plain language, since the statute refers to a "bad faith intent to profit" from registration of the domain name in question.

Since the statute refers to a "bad faith intent to profit", then it is obviously distinguishing from a "good faith intent to profit", or is it your contention that the words "bad faith" serves no function there?

Because if you are, and any intent to profit by use of a trademark (e.g. by selling the product at retail) then you are simply reading the words "bad faith" right out of the statute.

And at that point, we are well clear of "plain language" and solidly into the realm of "what I think the statute should say, but didn't".

Re: Typosquatting: A Solution Alex Tajirian  –  Feb 22, 2008 7:00 AM PDT

John Berryhill said:

Anyway, I gather Alex understands why his idea is a non-starter.

John,
Thanks for the following insights and case evidence:

1.  Decisions in favor of non-brand owners.
2.  That “fair use” in a bricks-and-mortar world can be extended to domain names under a First Amendment argument.
3.  Some of the unfavorable court decisions would have had the opposite fate under UDRP, which is also Enrico’s view.

Given the above, I would conclude that there are “some” brand owners who agree with you, and thus, there is a viable market for a cooperative arrangement unless “some” reflects few.

Nevertheless, among the brand owners who disagree with your legal arguments, some may see the economic viability (shareholder value creation) of pursuing a cooperative strategy. Moreover, as Enrico points out, there aren’t many good remedies available. Thus, we end up with more than few willing cooperative brand owner.

Regards,
Alex

Re: Typosquatting: A Solution Alex Tajirian  –  Feb 27, 2008 1:05 PM PDT

Enrico Schaefer said:

Will some trademark holders eventually raise the white flag and protect their trademarks by entering into licensing arrangements with typosquatters? Will some decide to get in bed with the enemy?

Your analogy is very interesting, as it raises two questions: When is a cooperative solution getting “in bed with the enemy?” And, if it is OK for Sean Connery, when is it OK for domains?

There are three scenarios that come to mind, whereby the analogy is not appropriate: evidence that some trademark use has been exempt by the courts (pointed out by John); when competition is transfered to co-option; and when court decisions would have turned the other way under UDRP (as you noted). Any other scenarios?

Re: Typosquatting: A Solution Alex Tajirian  –  Feb 27, 2008 9:37 PM PDT

John Berryhill said:

But that state of affairs is a natural consequence of the all-purpose binary argument which boils down to:

"He is linking to my products, ergo he is a cybersquatter."

or

"He is not linking to my products, ergo he is diverting my customers and is thus a cybersquatter."

John, Thanks for pointing out and underscoring the binary argument that can be very instructive for developing alternative solutions. Using symmetry arguments, one can transform a binary argument [A, ergo B] to [A, ergo not B], [not A, ergo not B], etc. Thus, the first argument would be transformed to [He is linking to my products, ergo he is not a cybersquatter.]

What solutions would be consistent with this symmetry argument? Any thoughts?

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