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ICA Successfully Advocates to Discredit the Dangerous Retroactive Bad Faith Theory Under the UDRP

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Let’s say you register a domain name today. You’ve done your due diligence, and you see there aren’t any companies that use the keyword(s) in your domain name as a trademark or for their brand name. A few years from now, some company launches with its brand matching your domain name.

The company now wants your matching domain name, but they don’t want to pay you for it – they want to take it from you. Until recently the company could file a UDRP complaint seeking the transfer of your domain and reasonably hope to succeed in being awarded your domain by the UDRP panel. The company would rely on a fringe interpretation of the UDRP known as “Retroactive Bad Faith” (RBF) that some panelists used to justify the transfer of long registered domain names to owners of trademark rights that arose since the domain was registered.

RBF had been cited in a number of UDRPs. One particular case that stands out is the UDRP for Camilla.com. Here’s what Andrew Allemann wrote about that UDRP decision, which ended in a transfer ruling in favor of the complainant:

Nat Cohen: Why I Support the ICA

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This is a guest post about the Internet Commerce Association from domain investor Nat Cohen, President of Telepathy, Inc.

The Lord Giveth and the Lord taketh away.

For the domain industry, the part of the Lord is played by the U.S. Government and ICANN.

In the early days of the Internet, the U.S. Government policy allowed billions of dollars of domains to be registered on a first-come first-served basis for a registration fee per domain of $100 or less.

Those of us who benefited from this “landrush” know how fortunate we’ve been. Even those domainers who weren’t involved in the early days, benefit from the tremendous value inherent in domain names that is still not fully recognized.

But it is a mistake to confuse being lucky with being smart.

Being smart is taking full advantage of the good luck that comes your way and not  taking it for granted. That is why I consider it smart to

Vanity Plate Advertising Auction to Support The Internet Commerce Association

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Abdu Tarabichi, founder of Domainsville, created a unique auction on Ebay to raise funds for the non-profit Internet Commerce Association (ICA). Abdu is auctioning one year of advertising space as a vanity license plate on his silver 2012 Honda Civic, and all funds will be donated to the ICA.

Listed below are the terms of the auction, and if you are interested in the “naming rights” to Abdu’s license plate, you must adhere to them:

ICANN Meeting in New York on July 13

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ICANN LogoI just registered to attend the upcoming ICANN gTLD meeting in New York City on Monday, July 13, 2009. There is no cost to register for the event, and I recommend that domain owners in the New York area attend the meeting.

This may be the last chance to express your opinion, as a domain name owner, about the IRT and URS proposal. At the very least, it’s a good opportunity to meet ICANN leaders and learn about how ICANN works.

Here are the details for the NY Meeting:

Date: July 13, 2009
Time: 9:00am – 5:00pm
Location: Hudson Theatre, Millennium Hotel – (145 West 44th Street, New York, NY)

If you can’t make it to the NYC meeting, other meetings are scheduled for locations around the world, including London (July 15, 2009), Hong Kong (July 24, 2009) and Abu Dhabi (August 4, 2009). Again, it’s free and easy to register online.

IRT Report & URS Comments

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If you own a domain name, I implore you to read the IRT Proposal to form your own opinion of its contents. If you have any issues with it, please take a few moments to write a comment to ICANN – today is the final day to make your comments heard. You can also read other comments that were submitted.

It is my opinion that the Uniform Rapid Suspension System is dangerous to domain owners, and I submitted an email comment explaining why I believe this. The only way for my opinion to be heard is via the public comment forum, and I wanted ICANN and those who follow ICANN to see (and address) my issues.

While the odds are great that a URS dispute won’t be filed against a domain name you own, it is very likely that one will be filed against someone who owns a generic domain name. Now is the final opportunity to provide your comments about the proposal – not 6 months or a year from now when a legitimate domain name or website is taken offline by an overzealous trademark attorney.

As I stated in my submission, I do believe the intent of the proposal is good, and it probably won’t impact the majority of ordinary domain owners and small businesses such as mine. However, just like there are domain owners who don’t take the legal/ethical high ground, I believe there will be trademark interests who use the URS as a way to secure domain names in a less expensive manner than direct acquisition. For those domain names and owners that become targets, fighting URS complaints will be a very costly endeavor.

It’s likely that it won’t be your domain name that is targeted, but if you are unlucky and a large company wants your domain name, the costs associated with defending your rights could be very high.

Take some time this morning to read the report. You can also read Mike Berkens’ comments and read more information from Ron Jackson. Rick Schwartz has also weighed in as has George Kirkos. Comments from the Internet Commerce Association are also available online. Now is the time to form an opinion and make your comments known. The trademark and IP attorneys have spoken, and now is the time for domain owners to voice their opinions.

Internet Commmerce Association Benefit Auction

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During today’s live Domain Roundtable auction, 10 domain names will be auctioned to benefit the Internet Commerce Association, and all proceeds from these 10 domain names will be donated to the organization that represents domain owners. These domain names were donated by a variety of individuals and domain companies. For those who are not in attendance at the show, bidding can be done online at the Aftermarket.com website.

ICA Auction Inventory:

–       Castaway.com
–       ParkingShare.com
–       SecureWeb.com
–       Deployed.com
–       Slices.org
–       LikeHer.net
–       SleepSafe.com
–       HolidayLoan.com
–       PlasticSurgeryWebsite.com
–       [TCI domain coming soon]

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