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UDRP Good for Trademark Protection, Not So Good for Political Process

Social Science Research Network has published a paper examining "the large gaps and inconsistencies in current domain name law and policy" as compared with domain name use in the political context. The paper suggests that the current domain name policy is focused on protecting trademark uses of domain names against bad faith commercial 'cybersquatters' but does not deal with protecting use of domain names as part of the political process.

From the abstract: "In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns 'hillaryclinton.com', the more generic 'hillary.com' is registered to a software firm, Hillary Software, Inc. What about 'hillary2008.com'? It is registered to someone outside the Clinton campaign and is not currently in active use. This article identifies the current problems with Internet domain name policy in the political context and makes recommendations for developing clearer guidelines for uses of political domain names. In so doing, it creates a new categorization system for different problems confronting the political process in cyberspace, including: (a) socially and economically wasteful political 'cybersquatting'; (b) political 'cyberfraud' which might involve conduct such as registering a politician's name as a domain name to promulgate a misleading message about the politician; and, (c) competition between politicians' names and competing trademark interests."

Paper can be downloaded from Social Science Research Network's website.

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Re: UDRP Good for Trademark Protection, Not So Good for Political Process John Berryhill  –  May 23, 2007 2:21 PM PDT

This paper is a "must read" for fans of the "cybersquatting means whatever I say it does" line of thought:

One obvious answer to this problem, and to some other associated problems, would be to legislatively ban all forms of cybersquatting. In other words, a general rule could be adopted on the national or international level prohibiting all registrations of domain names where the intent is to profit from selling the name rather than any legitimate use or purpose of the name in the hands of the registrant.
[...]
A good example of such alternate conduct would be conduct that might be termed ‘anticipatory cybersquatting’ – where a registrant registers multiple domain names that do not necessarily correspond with trademarks or personal names, but rather correspond with general ideas that may be valuable in a particular field of commerce. For example, a registrant might register multiple variations of the word ‘sports’, ‘cars’, or ‘movies’ in a domain name – say, ‘cars.com’, ‘motorcars.com’, ‘carworld.com’,‘caruniverse.com’. If the registrant registers enough of these variations, she could effectively pre-empt anyone who wanted to register a domain name to sell cars and hold relevant domain names for ransom for an exorbitant fee. This would mean that the person wanting to enter the field could have to pay hundreds or thousands, or even millions, of dollars for a relevant domain name instead of the standard registration fee of ten to twenty dollars.

I love that second paragraph.  As if there aren't already a gazillion widget vendors who already have registered a gazillion "widget" domain names already.  But, no, some "cybersquatter" is going to corner the market on all domain names that relate to a concept.

I can't help but think of that awful cybersquatter, Carl Oppedahl, a patent attorney who recently sold patents.com after the bidding reached $350,000.  If he no longer wanted the domain name, he should have let it expire, so that someone could register it for ten to twenty dollars.  For shame.

This part is better:


There are other more workable solutions to conflicts between politicians and
legitimate trademark holders with interests in the same domain name, particularly in the electoral context. One solution would be a temporary compulsory licensing system under which a politician could exercise rights in the name in the lead up to an election, and the name could thereafter revert to the legitimate trademark holder. This could be administered through domestic legislation or through the private administration and dispute resolution proceedings of the domain name system.

So, hmmm..., during an election, some politician gets all of the email correspondence from customers who had been doing business with a company; and then after the election the company gets the domain name back and then receives all of the email correspondence intended for those temporary email addresses.  And, oh yes, if this is a US Congress seat, then the company has to put up with that crap every two years?

Why not just pony up the $50K application fee, get yourself ".vote", and go crazy with your charter, so that "smith.vote" can only be used by that guy, uh, you know, "Smith", who is running for, oh, about 200 different offices in various countries.

Oy.

Re: UDRP Good for Trademark Protection, Not So Good for Political Process John Berryhill  –  May 23, 2007 2:29 PM PDT

Forgot the best highlight....

On page 47, she calls a registrar a "cybersquatter" because she apparently can't tell the difference between a registrant and a registrar in a whois record.  There's a great start for a policy analyst.

Re: UDRP Good for Trademark Protection, Not So Good for Political Process Daniel R. Tobias  –  May 23, 2007 5:49 PM PDT

Since campaigns are noncommercial organizations (well, at least when nobody's skimming cash under the table from them...), it would be more logical for them to have .org domains, instead of the .com addresses given as examples here.

Re: UDRP Good for Trademark Protection, Not So Good for Political Process Dave Zan  –  May 23, 2007 7:03 PM PDT

On page 47, she calls a registrar a “cybersquatter” because she apparently can’t tell the difference between a registrant and a registrar in a whois record.  There’s a great start for a policy analyst.

Heh, what else to expect from someone who doesn't seem interested in finding out what it's possibly like on that side of the fence?

(Haven't finished reading the paper, got bored with some of the possible BS I've gathered so far. But that's just me.)

Re: UDRP Good for Trademark Protection, Not So Good for Political Process John Berryhill  –  May 23, 2007 9:54 PM PDT

Since campaigns are noncommercial organizations

Oddly, the notion of a political organization, rather than an individual candidate, is absent from the article.

I'm itching to know who has the "greater right" to socialist.com, labor.com, democrat.com, republican.com, socialdemocrat.com, and so forth, particularly since these party names are used by entirely different organizations in different countries.  In some electoral systems, voting by party slate is more common than the US style personality cult system.

The current US Congress has three people named "Bishop", 2 people named "Brady"…

3 "Brown"
8 - count 'em - 8 "Davis"
2 "Green"
2 "Hall"
4 "Johnson"
2 "Jones"
3 "Lewis"
2 "McCarthy"
4 "Miller"
3 "Murphy"
2 "Price"
3 "Rogers"
2 "Sanchez"
2 "Scott"
4 "Smith"
2 "Thompson"
3 "Wilson"
2 "Young"

http://www.house.gov/house/MemberWWW.shtml

That's only the House of Representatives, and those are only the candidates that won.  There must be thousands of elected offices in the US alone, when you take into account all national offices, as well as state, county, municipal, school board.

Then you have situations such as here in Delaware, where in the last election one could vote Biden for US Senate and Biden (his son) for state attorney general.  The potential for a family feud in Massachusetts would drive anyone to drink.

Of course, the internet is global.  The fights over Kim, Park, and Lee in South Korea alone would be more interesting than the actual elections.

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