Submit Express Newsletter
Dec 15, 1999
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1- Intro
2- Trademark Law and Domain Names
3- Cybersquatters Beware!
4- Search Engine News
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1- Intro
Last week in our partner newsletter, "Affiliate Today," we announced
that you could now register 67 character domain names. Previously this
was limited to 23 characters. This opens up a whole range of new
possibilities, and we urge you to reserve some good domain names now,
before they are gone.
For example, in some industries like Real Estate, it is very hard to
find an available domain name. A few weeks ago we wanted to register a
domain name for one of our clients, "American Mortgage Bankers of
California," but all possible combinations were either taken or were
too long. We have now registered:
www.AmericanMortgageBankers.com (which was one letter too long before)
This change is so new that Network Solutions does not offer it yet.
Fortunately, we have found an approved domain name registry that allows
registration of 67 character domain names. They charge only $60 per
domain for 2 years. Here is their link:
http://www.submitexpress.com/domains.html
We mentioned in the last issue that Infoseek does not accept submission
of sub-pages anymore. By registering a few domain names you will
increase your chances of getting listed immediately rather than having
to wait for Infoseek's spider to crawl your sub-pages. Also, domain
URLs rank better than sub-pages in most major search engines.
However, before you register a domain name, make sure to read the
articles below about some very important new laws that were passed in
regards to registering domain names that contain trademarks, better
known as "Cybersquatting."
We hope you enjoy this issue, and as always we ask that if you like our
newsletter, please forward it to all your webmaster friends or whoever
might be interested. Subscription is completely free and can be
obtained at:
http://www.submitexpress.com/newsletters.html
Thanks,
Submit Express
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2- Trademark Law and Domain Names
Recently, two of our clients were asked to cease and desist the use of
their domain names, because URLs contained trademarked terms. With the
recent trademark laws passed (see next article), it has become very
difficult for non-trademark holders to argue their case. I have
decided to write this article to mostly warn people from choosing
domain names that may infringe upon trademarked terms.
A few months ago one of our clients, shadesrus.com, notified me that we
should stop optimizing their site at the given URL, and that they had
changed their name because Toys-R-Us had threatened to take action. We
had worked very hard in getting their site to the number 2 position on
AltaVista with the keyword "sunglasses" and now we had to start over.
Then a few weeks ago we heard a similar story from another client,
MyStarwars.com. This time LucasFilm was asking for the domain name
rights.
Both of our clients have been asked to cease and desist using these
domains, even though they both have very good cases for holding on to
them. Shadesrus does not sell toys, and MyStarwars.com is an authorized
reseller of LucasFilm products. Unfortunately, both these sites have
decided to give up using the domain names because it will be cheaper
for them to start over with fresh sites, rather than battling the
giants.
Another similar case is the non-profit community site latinabarbie.com .
The site belongs to 21-year-old Michelle Curiel, who has been receiving
thousands of hits a week and has about 900 registered email users. She
is being asked by Mattel, Inc. to transfer the name back to them and in
return they will pay her $70 for her domain registration fee!
I had a chance to speak with Michelle and found out that she has simply
chosen her childhood nickname of "latinabarbie" as her domain name.
Michelle does not sell or mention any products at her site related to
those products made by Mattel. At this point, Michelle is talking to
her attorneys and has not yet decided what she will do. She has worked
very hard on her site, and I hope that she will be able to keep it.
For the latest on her case and to see how you can help her, please go
to her bulletin board page at:
http://server3.ezboard.com/blatinabarbiesmessageboard.html
Here are links to some other similar cases:
Virtual Works' vw.com vs. Volkswagon
http://www.internetnews.com/bus-news/article/0,1087,3_246671,00.html
bbc.org vs. BBC
http://www.theregister.co.uk/991129-000016.html
eToys.com vs. etoy.com
http://www.zdnet.com/intweek/stories/news/0,4164,2408451,00.html
http://www.villagevoice.com/issues/9948/barliant.shtml
http://www.toywar.com
fcuk.com vs. First Consultants UK
http://www.theregister.co.uk/991206-000020.html
We hope that in the future you will use caution when choosing a domain
name that may be a catchy variation or spin-off of major trademark
labels like the ones mentioned earlier. Your hard work and effort
shouldn't be taken out from under you. Research, prepare and plan your
domain name carefully. The misconception that the Internet is an area
of no consequence is soon changing because lobbyists and big business
have seen the profit potential.
Good luck!
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3- Cybersquatters Beware!
On November 30, 1999, President Bill Clinton signed into law the
Anticybersquatting Consumer Protection Act (hereinafter "Act").
Holders of trademarks, both consumer and corporate holders, extensively
lobbied for passage of this legislation. Cybersquatting is the
practice of registering an Internet domain name, or other identifier of
an online location, with the hopes of profiting due to that name's
association with a trademark owned by someone else. Profits
materialize once the owner of the trademark pays a premium to purchase
the Internet domain name or identifier from the cybersquatter. The
Act's goal is to both stop and punish the practice of cybersquatting,
and to protect consumers and promote electronic commerce by amending
certain trademark infringement, dilution, and counterfeiting laws. In
short, the Act aims to provide protection to trademark holders in the
ever-expanding Internet and digital age.
Congress made specific findings that the unauthorized registration or
use of trademarks as Internet domain names or other identifiers results
in consumer fraud and public confusion as to the true source or
sponsorship of the products and services. Further Congressional
findings held that cybersquatting deprives owners of trademarks of
substantial revenue and consumer goodwill.
What protection does the Act afford to trademarks holders? The
trademark holder (hereinafter "Plaintiff") now has a federal court
remedy if plaintiff can prove that the Internet domain name holder
(hereinafter "Defendant") has committed one of the following two
violations:
CATEGORY ONE: The defendant is using an Internet domain name or other
identifier of an online location that is the trademark of the
plaintiff. For example, defendant cybersquatter has registered
microsoft.com, a trademark owned by Microsoft Corporation. This is the
simple situation when the discovery process of civil litigation will
almost certainly lead to court or jury factual findings that defendant
violated the Act.
CATEGORY TWO: The defendant's Internet domain name or other identifier
of an online location is "sufficiently similar to a trademark" of the
plaintiff so that it causes either:
a. confusion or mistake; or
b. causes deception; or
c. causes a dilution of the distinctive quality of a famous trademark.
For example, defendant cybersquatter has registered windows.com, a
domain name that is sufficiently similar to a trademark of Microsoft
Corporation. Plaintiff must then prove that the domain name deceives
the public into the mistaken belief that defendant is associated with
Microsoft Corporation. This situation, which is the more likely
factual pattern than one detailed in Category One, makes it more
difficult for plaintiff to prove its case. What exactly is meant by
"sufficient similar" to a trademark will depend on a number of factors
and heighten the possibility of a protracted lawsuit. Trial and
appellate courts will develop specific factors as the Act is
interpreted and used by litigants. The process of using the Act in
everyday legal situations and awaiting interpretations and guidance by
higher courts may take a number of years.
A prevailing plaintiff can be awarded monetary damages between
$1,000.00 and $300,000.00 under the Act. The Act also allows plaintiff
to collect fees paid to attorneys to prosecute plaintiff's case. In
addition to monetary damages, the court can order the cancellation of
Internet names that were registered in bad faith by defendant. The Act
applies to future cybersquatting conduct and applies retroactively to
domain names that already have been registered.
The Act will immediately transform the cybersquatting playing field by
giving trademark holders a distinct advantage in securing their
trademarks. Trademark holders will no longer be subjected to extortion
type practices of cybersquatters, especially in those situations
wherein plaintiff is using the Category One type violations to stop the
defendant. This being said, it is not yet clear how the Act will
affect the overwhelming majority of cases where a "sufficient similar"
standard must be proven by the trademark holder (i.e. Category Two type
cases). The real action will occur in this second category of cases
since the cybersquatter will have a better opportunity to make factual
claims to its right to use the disputed domain name.
Aram Ordubegian, Esq.
aram@lawyer.com
1999 Copyright
For more details please see:
Uniform Domain Name Dispute Resolution Policy
http://www.icann.org/udrp/udrp.htm
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5- Search Engine News
MSN SEARCH:
MSN Search is now using Inktomi again. If you remember, a few months
ago we had reported that MSN had dropped Inktomi and was using
AltaVista. But it appears that now they have gone back to Inktomi for
their secondary results. Their primary results are taken from the
LookSmart directory.
EXCITE:
Excite has not been indexing new pages for a while. It's been reported
that currently only the existing pages are being re-indexed. If you
have been experiencing problems getting in, you are not alone. Excite
has announced that they are doubling their index size to 250 million
listings. So we expect that they will start adding new sites sometime
soon.
SNAP:
Snap has added a new feature called "LiveDirectory". This feature
allows live addition of websites, without having to wait for an editor
to review your site. The only difference is that the results will be
shown after the regular listings. Over time, the editors will go
through and add the best sites from the submissions to the actual
directory listings.
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Submit Express
Website: http://www.submitexpress.com/
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