Cybersquatting

Time Warner / Road Runner Hijacking Tribune Company’s TVListings.com Typo?

I am sure you’ve heard about the hypocrisy of companies like Verizon, Comcast, Time Warner, and other Internet Service Providers who display an error page laden with pay per click links when a user types in a domain name that doesn’t exist. It really irks me when ISPs monetize typo domain names – even for trademarked terms, especially when some of them file UDRPs and lawsuits against companies who monetize their marks.

I was so annoyed by this practice that I opted out of the Road Runner service, so when I typo a domain name that doesn’t exist, I am suppose to be taken to an error page that says “Server Not Found.” See screenshot below of a page that doesn’t exist to see the generic error page I generally receive in Firefox (I get a similar error page with Safari, too).

Error Page

When I enter a domain name without the .com in my browser, Safari automatically enters the .com for me, and I am taken to that site if it exists or an error page similar to the one above if there is no website. With Firefox, if I enter a domain name without the .com it takes me to the website I intended, or if the page doesn’t exist, it takes me to a Google search results page. If I enter a typo domain name and there is no website, I am taken to a page that looks like the one above. I am never suppose to be taken to a Road Runner error page since I opted out of their service.

This morning, I wanted to check out television listings to see what football games would be on TV this afternoon. I was a bit lazy, so instead of entering TVListings.com, I simply entered “TVListings” into my browser, assuming I would be taken to TVListings.com, a website owned by the Tribune  Company, since Safari is suppose to add the .com for me (same thing happens in Firefox which generally takes me to the closest website). To my surprise, I was taken to a Road Runner landing page (see screenshot below and click for larger image).

TVListings

Since I have opted out of the error page service, I don’t see how it’s okay for Road Runner to take me to their landing page instead of taking me to the page I intended to visit. I know Time Warner offers cable service, which I also have, so that’s probably their motivation for doing this. However, I don’t think this is right for them to take me to a page I didn’t intend to visit. They shouldn’t have one policy for some domain names and a different policy when they have a competing website.

Melanie Oudin .com: Protecting a Brand

I frequently see cybersquatters quickly grab the .com domain names of up and coming athletes, musicians, and entertainers. Oftentimes, it happens when sports magazines announce a new class of top recruits or after a great public performance when people buy these names like lotto tickets hoping the athlete/celebrity hits it big and the name presumably becomes valuable.

Melanie Oudin is a 17 year old woman from Marietta, Georgia currently competing in the US Open tennis tournament in Flushing Queens, New York. This afternoon, Oudin won over the pro-American crowd by defeating 13th ranked Nadia Petrova from Russing in three sets, and is now one of the final 8 women competing in the tournament.

I wanted to see when someone tried to capitalize on Oudin’s success by registering the MelanieOudin.com, and I found that her father had registered it back in 2007 – a very smart move! A professional athlete is a brand, and it’s important to protect the brand as early as possible.

With Melanie Oudin’s great performance in the US Open so far, now might be a smart time to add privacy guard to prevent unwanted emails, although DomainTools has already archived the email address by now.

Use Caution With “Generic” Terms

I have found that when a domain investor owns domain names with generic terms, like NewHouses.com for example, they are generally free and clear of trademark issues, aside from when a bullying company wants the domain name and is willing to take legal action to fight for it. However, there are many terms out there that may seem like they’re generic, when in fact they are protected terms that are often vigorously defended by trademark holders.

I am not a lawyer and don’t pretend to be one, so take this with a grain of salt. However, I believe that in order to keep a trademark active, the trademark holder must protect its ownership of the mark, so that others can’t claim it’s free to use by anyone. For example, while Google loves that people are “Googling,” they need to protect that term from becoming public domain and prevent others from using it.

In fact, I read something unrelated to domain names, but backs this claim up. In reference to Bud Light’s proposed “Fan Cans” with college athletic team colors, Vince Sweeney, Vice Chancellor at University of Wisconsin said, “If you don’t protect your trademarks, you eventually lose them, so we felt it was important to at least communicate to them that we didn’t think it was an appropriate tact.

That said, there are terms being used by many people in domain sales threads that are actually protected by the owners of those trademarks. One of the most commonly used terms that I believe people don’t realize is a trademark is “Realtor,” which is a trademark of the National Association of Realtors. This organization protects the term “Realtor,” and has many rules about how the term can be used, especially when it comes to domain names and websites.

Additionally, there are terms are protected in some countries, but generic in other countries and free to use in advertising materials, including domain names.   Some of these terms include Band Aid, Yellow Pages, Kleenex, Yo Yo, Escalator, Aspirin, Thermos, and many others. There are also terms that are free to use for some types of products and services, but others are protected by brand owners who are borderline over-protective.

While some people might think it’s unreasonable to do trademark searches before buying every single domain name, it can save the domain investor from registering infringing domain names – especially when the objective is re-sale rather than development.

Last night, I received a huge list of domain names for sale, with nearly all of them containing the name of a popular brand. The owner claimed that the brand name was his last name, and that the company had never contacted him about the domain names. Perhaps it was okay for him to own the domain name, although some of the names were clearly related to the brand rather than him (they contained the brand name + product type), but they wouldn’t be okay for me to own since I have no relation to the brand name or to the brand.

It costs under $10 to buy a domain name, but if you buy a domain name that infringes upon a company’s trademark, it can cost thousands of dollars to defend, and some companies don’t care as much about the infringing domain name as they care about making an example out of the domain registrant.

Buy Potential Typos of Your Domains

Stanley SteemerWhen a company advertises in media that requires the viewer to visit the company’s website subsequent to seeing the advertisement (like television, radio, newspaper, billboards…etc), it’s important that the company own potential typo domain names. People have a short memory, especially when they are doing other things, and there is strong potential for them to type-in the wrong domain name.

In the middle of writing an article, I happened to hear a commercial for Stanley Steemer, a carpet cleaning company. Because I have been thinking about getting a 8×10 rug cleaned, I visited the website a few minutes after the commercial. When I typed in StanleySteamer.com (assuming it was “steamer” for steam cleaning), I was redirected to StanleySteemer.com, the correct domain name.

It goes without saying, but it’s smart to forward the typo to the proper address.   I have seen a few companies not do this (or own the generic name and not forward that to their brand), and I have also seen companies who don’t forward the non-www to their correct address. It’s even a smarter move by Stanley Steemer to own this obvious typo, because Google’s Keyword Tool shows a significant amount of searches. Many companies don’t think about buying the typo until it’s too late, and the company was smart to do it (although I would have recommended to spend a few dollars extra on StanlySteamer.com and StanlySteemer.com despite just a few searches for those terms).

When a visitor intends to visit a particular company and types in the domain name, this is high value traffic because the visitor knows what he wants and where to get it. Should the company not own the typo and a cybersquatter has it (in the case of a trademark typo), the company will have to pay to get this traffic forwarded via PPC link. The company will usually end up paying much more in PPC advertising than they would for the domain name.

Cybersquatting in the Past Hurts Today

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Subscribe to Elliot's BlogOur industry still has a bad reputation from misdeeds that occurred years ago before trademark laws were actively enforced on domain owners. While there is still less obvious cybersquatting today than years ago, the industry continues to get a bad rap from people who aren’t familiar with it due to events that occurred years ago.
At a wedding this past weekend, I was speaking to a person who is the CEO of a multi-national venture capital firm. In addition to retail, financial, and oil company holdings in the US and Europe, he also owns a professional soccer team. When I told him about my business, he mentioned that he was somewhat familiar with it, having dealt with a guy who tried to sell him the .com of his full name for $20,000 (his name is not common at all, and all Google results for his name are for him). He didn’t outwardly say it, but I could tell he didn’t think domain investing is a legitimate business.
When I explain what I do to people I don’t know, I find that people either have no clue about the domain industry or they have a negative opinion about it. I frequently find myself defending our industry to people I meet, explaining that the domain names I own are generic names that don’t infringe on other brands. It’s frustrating that misdeeds in the past still affect us today.

Registrars Should Help Prevent Cybersquatting

In the United States, smoking is perfectly legal for people who are 18 years of age or older. Likewise, it is perfectly legal to consume alcohol if you are 21 years of age or older. Corner stores and supermarkets are required to check the identification of anyone trying to buy one of these products if they look younger than a certain age. There are also notices on the packaging explaining the health risks of consuming these products. Of course people still do consume the products after reading the warning labels, but the government lets them know the risk and gives them something to think about.
As it stands right now, knowingly profiting off of the trademark and goodwill of a company via domain name is against the Lanham Act and can lead to penalties of up to $100,000 per domain name. Also as it stands right now, this fact may not be known by thousands of domain registrants who knowingly register infringing domain names each day, but unknowingly break the law.
When I first entered the domain business, I frequently heard stories about the Internet pioneers who registered domain names of major brands before those brands thought to register them on their own. They were frequently rewarded with large sums of money from the brand owner, as Internet law was still fuzzy, and owning a generic domain name like Apple.com, Bud.com or McDonalds.com wasn’t against any laws. If a person does not know that they aren’t permitted to sell a domain name that includes the word Microsoft to the company named Microsoft, they may register the domain name with that intent. While seasoned domain investors know the law, unseasoned buyers may think what they are doing is legitimate.
I will be the first to admit that I registered a few domain names that may have infringed on brands while I was in graduate school when I first started out investing in domain names. Little did I know, there were laws against doing this – and this was in 2003! I am very fortunate that I never faced any penalties for doing this, and since learning about the Lanham Act, I haven’t knowingly registered an infringing domain name because I don’t have the stomach to worry about potential legal issues. No, I am not better than anyone else, but the knowledge of the law and knowledge of the stiff penalties encouraged me to stick to very defensible generic domain names.
With cybersquatting continuing to grow and be reported in the mainstream press, I think we need to begin to hold the registrars somewhat accountable. Sure it would be impossible to completely prohibit people from registering infringing domain names because who is to say what is infringing or not. However, I think the registrars should provide a notice at the checkout stage of domain registration if a person is about to buy a domain name that probably contains a famous mark. I said this same thing back in July, but as cybersquatting continues to grow, now is the time to reiterate it.
I don’t think registrars should disallow someone from registering a domain name with a famous mark as that would be utterly subjective. But I do think they should put a notice about the Lanham Act, in case a person is unaware of the ramifications of owning an infringing domain name. It is scary to think that a $7.00 domain registration can cause a $100,000 lawsuit.
Registrars should at least give notice to their customers. At a time when the domain industry is facing tumult from outsiders, domain registrars should at least do something to help protect and inform their registrants, rather than simply take their money and not care what happens after. I know this is a stretch, as we have seen some registrars automatically offer up advertising on domain names that are simply parked on their servers, and they don’t seem to pay attention to whether they are monetizing a trademarked domain name or not. It’s a stretch, but it’s time domain registrars become more accountable.

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