Domain Handbook Authors Announce
1999 Cyberserk Award
The authors of The Domain Name Handbook are pleased to announce their
selection for the 1999 Cyberserk Award. This award is bestowed annually
upon a company, organization, institution or individual deemed unclear on
the concept of the domain name system. The winner is picked by a two-person
jury that approaches the task with special seriousness. It is their belief
that highlighting the activities of cyberserkers will provide an
educational reality check, and in 1999, they found no dearth of candidates
qualifying for the dubious distinction.
"Domania" grabbed headlines throughout the year. With Internet traffic
doubling every 100 days, domain names took on greater ubiquity, but it
would be premature to proclaim that the domain name system came of age in
1999. Domain names became valuable corporate assets and the shorthand to
an unprecedented repository of information. Dot coms were plastered across
mammoth billboards, brick and mortar store fronts, truck panels, t-shirts
and even tomato labels. They were featured prominently in television
commercials, magazine ads, packaging labels and syndicated cartoons.
The surging demand for .COM names, coupled with the uniqueness requirement,
raised the price bar on stellar .COMs. A few near million dollar
milestones were reported during the year: $1.035M for WALLSTREET.COM at
auction in April, $.5M plus an equity position for COMPUTER.COM in May,
$823,456 for DRUGS.COM auctioned in August. But these daunting sums paled
in comparison to the new record price paid for BUSINESS.COM late in
November. eCompanies, a new venture headed by EarthLink Network Inc.
founder Sky Dayton and former Disney Internet executive Jake Winebaum,
bought the domain name for $7.5 million, up from $150,000 when the
BUSINESS.COM last changed hands in June of 1997. The high priced auctions
did not go unnoticed by cyberspeculators and fed a domain name profiteering
frenzy. Registrations were running about 10,000 per day by year's end.
Concern thst domain names would become a battlecry for customer and
employee beefs, corporations added preemptive and decidedly unflattering
registrations to their holdings. Procter & Gamble, the 1997 Cyberserk
Award winner, began marketing a new product, Febreze, in 1999, that
neutralizes pet odor. The corporation was so worried that it would become
the target of animal rights activists who believe the product is dangerous
to pets, that it registered the following domains: FEBREZEKILLSPETS.COM,
FEBREZEKILLSDOGS.COM, FEBREZEKILLSBIRDS.COM, FEBREZESUCKS.COM, and
IHATEPROCTERAND GAMBLE.COM. The campaign of Republican Presidential
candidate George W. Bush, unhappy with the satirical and potentially
damaging profile at GWBUSH.COM, registered 260 Bush-related domains,
including some decidedly offbeat ones--BUSHSUX.ORG, and BUSHBLOWS.COM--
that suggested to a hournalist that Bush's advisors thought their job was
to silence all criticism on the Internet, : n the other hand, some of the
campaign's purchases were downright weird--it bought such
oddball
names as "bushsux.org" and "bushblows.com"--leading one to
suppose that Bush's advisors thought their job (however
shortsighted and, ultimately, impossible) was to silence
all criticism
on the Internet, not just satirical websites that could be
mistaken for
the real thing.
A market enthralled by the Internet racked up huge gains for IPOs with .COM
appended to their business name. MARKETWATCH.COM increased 509% in value
from the issue price and the first day's close while THESTREET.COM, a
financial news Internet site, soared from $19 to $60 on its first day of
trading, a 253% increase. At least 100 Internet-related companies have
announced name changes in 1999, and more than half of these changes
included the addition of .COM to the corporate moniker. Eight of the 11
companies that announced changes in early May
became .coms. After the online technical book retailer Computer Literacy
came up with a catchy, cool, in-your-face Internet name," Fatbrain.com. he
stock jumped 36 percent, to $28, in
one day, adding more than $100 million to the
company's market cap.
On the eve of the introduction of competition into the domain name
registrar business, NSI folded the InterNIC website into its own to help
customers "more easily find the
information, services and tools they need, while
stranding thousands of links to the rerouted site. We bestow upon NSI the
Supra Hairy Hoary for this act which seemed to reveal ore hubris than
cyberserkery.
NSI, the largest registry in the world, usurped the InterNIC site in March,
sending thousands of link worldwide to a virtual dead end. Due to the
worldwide popularity of the .COM top level domain, NSI branded itself as
"the dot com people" and Sun Systems became the dot in dot com.
An Oregon hamlet whose economy needed a boost, became the first with a .COM
appended to its name. Halfway, founded in the early 1880s near the Idaho
border, adopted the name HALF.COM, hoping the newfound attention would
bring the town of 365 residents out of its slump.
In an effort to prove how wired the world has become, Mitch Maddox, 26,
also traded in his name. Now legally called DotComGuy, he moved into an
empty Dallas home at the end of 1999, equipped onlky with a laptop
computer. For the next twelve months, he plans to rely solely on the
Internet for his survival, ordering food, furniture and clothing online.
The stunt seems strangely reminiscent of the movie dud--Biodome and rates
high on our inhouse cyberserk meter.
Some notable domain name disputes navigated through the court system in
1999. Domain names were declared property in >>>>>>>
and NSI was ordered to police the mark of ....
UN Domain Name Proposal Rankles, by Will
Rodger (Inter@ctive Week)
http://www.zdnet.com/intweek/stories/news/0,4164,2234668,00.htm
The World Intellectual Property
Organization has developed a a controversial proposal to arbitrate domain
name disputes.
03.30.99
NetSol Spams Name Holders, by Leander
Kahney (Wired)
http://www.wired.com/news/news/politics/story/18837.html
Network Solutions irked scores of
web administrators by sending unsolicited email to domain-name holders
to describe changes in the NSI website.
03.27.99
Network Solutions Registers Dissent, by
Michael Martinez (ABCNews)
http://abcnews.go.com/sections/tech/DailyNews/netsol990326.html
A vocal outcry greeted NSI's launch
of a new site on March 20, which replaced the InterNIC WHOIS access
with a host of new services
available through its own NETWORKSOLUTIONS.COM
03.26.99
Domain names are property, court rules, by
Courtney Macavinta (C/Net)
http://www.news.com/News/Item/0,4,34329,00.html
Domain names are property and can be
garnished to pay off a debt, a Virginia court ruled in the
UMBRO.COM case. .
, among them upholding a finding of no contributory infringement by NSI for
registering doman names to parties unaffiliated with the trademark owner
(Lockheed Martin v. NSI), a court opinion that domain names are property
(Umbro Com) and that the registrar must police the use of a tWorldsport.
[Johnson v. ACLU [decided in November by the United States Court of
Appeals for the 10th Circuit] was the first ruling of its kind.
A federal
appeals court rejected a state law banning Internet speech
deemed "harmful
to minors," saying that such laws censor valuable speech for
adults.... The
case was significant because there has been a trend to apply to
the Internet
the harmful-to-minors concept, which in the physical world
concerns the
knowing transmission of speech to a minor [that is likely to be
harmful]. But
on the Net, it is not possible to know the age of ]
The decision is far from the first to favor the little guy. In September,
Hasbro lost another
round in its ongoing battle to reclaim the
domain name clue.com, losing to Internet
consulting firm Clue Computing in a Boston
court. Eric Robison, Clue Computing's
president and CEO, similarly noted the personal
and financial toll the domain name battle
had taken on his small company.
Policy wonks and lawmakers also hammered away at the ongoing
trademark/domain name battle. ICANN, led by ten unelected and
unaccountable individuals for the most part new to the domain name system,
created a Uniform Domain Name Dispute Resolution Policy for its 99 new
.COM, .NET and .ORG aregistrars. It would be hard to over look this
document when considering candidates for our annual Cyberserk Award.
however, the most significant event in the area of domain names for 1999 was
not in the courts and not even in ICANN but in Congress. The
Cyberpiracy Act, signed by the
president on November 29, gives owners of famous or distinctive
trademarks the tools they need to go to court and combat the
proliferation of cyberpirates who have tried to profit from others' famous
names. To some, this
marks the beginning of the end of the Wild West on the Internet
http://www.nytimes.com/library/tech/yr/mo/cyber/cyberlaw/24law.html
Cybersquatters - Internet users who have rushed to buy Web addresses, then sell
them later at a profit - were targeted in the
Anti-Cybersquatting Consumer
Protection Act enacted Nov. 29. The law followed fierce
lobbying by businesses
- and by Hollywood film stars who complained loudly
about Web sites bearing
their names and providing links to pornographic sites.
Political figures have also been affected. Hillary
Rodham Clinton paid $6,000
this year to buy hillary2000.com from a cybersquatter
who had registered the
domain name.
The new law, part of an omnibus bill dealing with
intellectual property rights,
allows trademark owners to recover statutory damages
ranging from $1,000 to
$100,000 after proving their trademarked name was
registered by someone
wanting to sell it back to them.
>After months of debate, the federal government has adopted legislation
>targeted at registrants of domain names which resemble well-known
>trademarks or personal names.
>
>On November 29, President Clinton signed the "Anticybersquatting
>Consumer Protection Act" (the “Act”) as part of a massive budget bill
>passed by Congress before it adjourned for the year.
>
>"Cybersquatting" describes the practice of registering Internet domain
>names which contain or resemble well-known commercial names or names of
>individuals, with an intent to prevent others from using the domain name
>or to profit by selling the domain name to the owner of the trademark or
>the individual. Traditional trademark law permits a trademark owner to
>bring an action against a domain name registrant only if the registrant
>is using the domain name in commerce, to sell goods or services. The
>simple act of registering a domain name has been held not to constitute
>a trademark infringement. Other trademark remedies, such as "dilution,"
>are only available if the trademark is well-known or famous. The new
>Act permits an action against a domain name registrant purely on the
>basis of its registration of a domain name.
>
>The new law authorizes trademark holders to file civil lawsuits against
>anyone who, without permission, "registers, traffics in, or uses a
>domain name" which is "identical or confusingly similar" to a protected
>trademark, where the user of the domain name "has a bad faith intent to
>profit from that mark." Similarly, the law prohibits the registration
>of domain names which use the name of a living person "or a name
>substantially and confusingly similar thereto, without that person's
>consent, with the specific intent to profit" by selling the domain name.
>
>The new law allows federal courts to determine whether a domain name is
>identical or confusingly similar to a protected trademark or name and
>whether the defendant has exercised "bad faith" when registering the
>domain name. The effect of this provision will be to reduce the number
>of available domain names because the “confusingly similar” standard
>will give existing domain name owners the ability to prevent others from
>using similar names. Free speech and privacy advocates have argued that
>the law will restrain free speech by forcing legitimate domain name
>holders to defend their rights through costly litigation. Trademark
>holders support the law as a response to rampant "piracy” of company,
>product and celebrity names that have great commercial value.
>
>The law provides several factors for courts to consider in assessing
>whether a domain name user has "bad faith intent." The following
>factors are indicators of "bad faith":
>
>-- If the domain name holder intends to use the domain name in a
>manner that "could harm the goodwill represented by the mark";
>-- If the domain name holder offers to sell the domain name for a
>profit without actually using the domain name "in the bona fide offering
>of any goods or services," or a past pattern of such conduct;
>-- If the domain name was obtained under false pretenses; or
>-- If the domain name holder acquires multiple domain names with
>knowledge that the names are identical or confusingly similar to
>protected trademarks.
>
>The Act specifies that the following factors may indicate an absence of
>bad faith:
>
>-- If the domain name holder has its own legal rights in the domain
>name;
>-- If the domain name is a name commonly used to identify the domain
>name holder;
>-- If the domain name holder has used the name "in connection with
>the bona fide offering of any goods or services";
>-- If the domain name is legitimately used for noncommercial or "fair
>use" purposes;
>-- If the domain name was not "distinctive and famous" when it was
>registered; or
>-- If the domain name holder "had reasonable grounds to believe" that
>the use of the domain name was lawful.
>
>If a court finds that a domain name has been registered improperly, the
>domain name may be canceled or forfeited to its rightful owner. In
>addition, at the plaintiff's election, the court may award either actual
>damages or statutory damages of up to $100,000 per domain name.
>
>One controversial provision of the statute permits the owner of a
>trademark to file an action against a domain name registrant in the
>jurisdiction where the domain name registrar is located. Thus,
>out-of-state and foreign registrants may find themselves subject to suit
>in jurisdictions such as Virginia, the "location" of Network Solutions,
>even if they have no other contact with the jurisdiction. In contrast,
>our earlier Internet Alert on September 8 discussed the split between
>federal and state courts in Virginia over whether customers of America
>OnLine ("AOL"), which is based in Virginia, can be sued in Virginia
>merely because they post content through AOL's main server. See
>http://www.haleanddorr.com/internet_law/e_alert8.html.
>
>The Act specifically protects domain name registrars, who will not be
>liable for monetary damages for the registration or maintenance of a
>domain name absent a showing of bad faith intent to profit from such
>registration.
>
>The effect of the Act on the Domain Name Dispute Resolution Policy
>recently enacted by the Internet Corporation for Assigned Names and
>Numbers (ICANN) is unclear. The ICANN policy, which is expected to be
>adopted by most domain name registrars, requires the registrant to
>submit to mandatory arbitration (at the election of the mark holder or
>other complainant) of cybersquatting and other domain
>registration-related claims. The first claim under the new ICANN policy
>was filed with the World Intellectual Property Organization (WIPO) on
>December 3 and concerned a domain name registered with Melbourne IT, an
>Australian domain name registrar. For more information about that
>claim, see
>http://www.mercurycenter.com/svtech/news/breaking/internet/docs/1149623l.htm
>
>The new law contains ambiguities and seems certain to be challenged.
>One thing is clear, however -- the new anti-cybersquatting law will not
>end the friction among trademark owners, domain name holders, and the
>domain name registrars.
f we can band together against predatory
practices and drive eToys' stock down, then we
have a considerable tool. I feel very strongly
that there is a culture in cyberspace despite the
boom that we've experienced, and after people
have been online for awhile they realize there is
more at a stake than being able to shop from
your home."
In the last 12 months, an estimated 19 newly
public companies have netted stock price
increases of more than 1,000 percent. The top
gainer, Internet Capital Group, has seen share
prices rise almost 3,000 percent since going
public in August.
Shares of business-to-business auction site
FreeMarkets.com hadn't even started trading
Friday when market analyst Scott Eherens
began forecasting a dot-com jackpot.
dging by this week's IPO performances, it
seems almost common sense to predict
stratospheric gains for any new company that's
been generating buzz among investors. In the
last five days, Net companies like Agency.com,
Andover.Net, and FreeMarkets have more than
tripled in first-day trading. And let's not forget
VA Linux, which set an all-time record Thursday
for a first-day IPO increase of more than 700
percent.
Eight of the 11 companies that announced changes in early May of 1999 also
became .COMs.
fter a year of big gambles, the biggest of all may be the
wager that
our exalted Internet, held together with baling wire and
chewing gum
in every conceivable way -- legally, structurally,
economically -- is
going to be able to withstand the coming heavy weather of a
truly global,
unregulated economy.
expandng global economy
become valuable corporate assets.
............................................................................
Ellen Rony ____ The Domain Name Handbook
Co-author ^..^ )6 http://www.domainhandbook.com
+1 (415) 435-5010 (oo) -^-- ISBN 0879305150
Tiburon, CA W W [EMAIL PROTECTED]
DOT COM is the Pig Latin of the Information Age
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